2005 2011 Eacjlr 1 PDF

EAST AFRICAN COURT OF JUSTICE LAW REPORT
2005 - 2011
Citation: [2005-2011] EACJLR
ISBN: 978-9987-712-63-2
Published by the East African Court of Justice
© 2015
Printed and bound by Mann Printers
EDITORIAL COMMITTEE
Hon. Justice Dr. Emmanuel Ugirashebuja President

Hon. Mr. Justice Liboire Nkurunzinza Vice President
Hon. Lady Justice Monica Mugenyi Principal Judge
Hon. Mr. Justice Isaac Lenaola Deputy Principal Judge
Hon. Mr. Justice Geoffrey Kiryabwire Judge, Appellate Division
Hon. Justice Dr. Faustin Ntezilyayo Judge First Instance Division
Geraldine Umugwaneza Ag. Registrar
Wanjiru Rubia Research Officer

COMPOSITION OF THE EAST AFRICAN COURT OF JUSTICE
Appellate Division
Hon. Justice Dr. E. Ugirashebuja President

Hon. Mr. Justice L. Nkurunzinza Vice President
Hon. Mr. Justice E. Rutakangwa
Hon. Mr. Justice A. Ringera
Hon. Mr. Justice G.Kiryabwire
First Instance Division
Hon. Lady Justice M. Mugenyi Principal Judge

Hon. Mr. Justice I.Lenaola Deputy Principal Judge
Hon. Justice Dr. F.Ntezilyayo
Hon. Mr. Justice F. Jundu
Hon. Mr. Justice A. Ngiye
COMPOSITION 2001- 2011
Appellate Division
Hon. Mr. Justice H. R Nsekela President

Hon. Mr. Justice P. K Tunoi Vice President
Hon. Lady Justice E. R. Kayitesi
Hon. Mr. Justice L. Nzosaba
Hon. Mr. Justice J. M.Ogoola

First Instance Division
Hon. Mr. Justice M.M. Ole Keiwua President

Hon. Mr. Justice J. N. Mulenga Vice President
Hon. Mr. Justice J. K. Mulwa Principal Judge
Hon. Mr. Justice A. Ramadhani
Hon. Lady Justice S. Bossa
Hon. Mr. Justice S. Warioba
Hon. Mr. Justice B. P. Kubo
Hon. Mr. Justice J. Busingye Principal Judge
Hon. Lady Justice M. Arach-Amoko Deputy Principal Judge
Hon. Mr. Justice J. J Mkwawa
Hon. Mr. Justice J. B. Butasi Principal Judge
iv
INTRODUCTION
The jurisprudence on Community Law has steadily grown since the inception of
the East African Court of Justice. The main objective of the East African Court
of Justice Law Report (EACJLR) is to publicize the cases decided by the Court in
a user friendly manner. This volume contains cases decided by the Court from
the very first ruling in 2005 to 2011. Each case contains a summary together
with a guide to the legal instruments and cases cited followed by a complete
and unabridged ruling or judgment. However, the report does not include all
references filed during the reporting period.
This report was developed by the East African Court of Justice with advisory
support of Raoul Wallenberg Institute and as part of a cooperation project
financially supported through Swedish development cooperation. The content
remains the responsibility of the East African Court of Justice.
December 2015
v
CASES REPORTED
African Network for Animal Welfare v The Attorney General of the United
Republic of Tanzania 239
African Network for Animal Welfare v The Attorney General of the United
Republic of Tanzania 242
Attorney General of the Republic of Kenya v Independent Medical Legal Unit 377
Attorney General of Kenya v Prof. Anyang’ Nyong’o & 10 others 131
Attorney General of the United Republic of Tanzania v African Network for
Animal Welfare 395
Alcon International Limited v The Standard Chartered Bank of Uganda and Others 195
Calist Andrew Mwatela and Others v East African Community 1
Christopher Mtikila v The Attorney General of the United Republic of Tanzania
and Others 62
Democratic Party and Mukasa Mbidde v The Secretary General of the EAC and
Another 305
Democratic Party and Another v The Secretary General EAC and Another 370
East African Law Society and Others v The Attorney General of the Republic of
Kenya and Others 68
East African Law Society and Others v The Attorney General of the Republic of
Kenya and Others 92
Emmanuel Mwakisha Mjawasi & 748 others v The Attorney General of the Republic
of Kenya 183
Emmanuel Mwakisha Mjawasi & 748 others v The Attorney General of the Republic
of Kenya 409
George Nangale v Prof. Peter Anyang’ Nyong’o and Others 47
Hon. Sitenda Sebalu v The Secretary General of the East African Community and
Others 160
vi
In The Matter of a Request by the Council of Ministers of the EAC for an Advisory
Opinion 98
Independent Medical Unit v The Attorney General of the Republic of Kenya and
4 others 190
James Katabazi and 21 Others v Secretary General of The East African Community
and Another 51
Legal Brains Trust Limited v Attorney General of Uganda 331
Mary Ariviza and Okotch Mondoh v The Attorney General of the Republic of
Kenya and Another 212
Mary Ariviza and Okotch Mondoh v The Attorney General of the Republic of
Kenya and Another 268
Modern Holdings (EA) Limited v Kenya Ports Authority 122
Mbugua Mureithi wa Nyambura v The Attorney General of the Republic of Uganda
and Other 349
Omar Awadh Omar and Others v The Attorney General, Republic of Kenya and
Others 361
Omar Awadh Omar and Others v The Attorney General, Republic of Kenya and
Others 367
Plaxeda Rugumba v The Secretary General of the East African Community, The
Attorney General of the Republic of Rwanda 226
Prof. Peter Anyang’ Nyong’o and Others v Attorney General of Kenya and Others 16
Prof. Peter Anyang’ Nyong’o and Others v The Attorney General of the Republic of
Kenya and Others 40
Professor Nyamoya François v Attorney General of the Republic of Burundi and
Another 320
Samuel Mukira Mohochi v The Attorney General of the Republic of Uganda 274
vii
SUBJECT MATTER INDEX
Advisory Opinion
Consensus- The principle of Variable geometry – Unanimity-whether variable geometry
could be applied to guide the community’s integration process- whether consensus in
decision-making implied unanimity.
In The Matter of a Request by the Council of Ministers of the East African Community 98
for an Advisory Opinion
Consistency in Treaty Interpretation - EALA re-election - Partner State discretion-

Maximum terms of EALA members- Newspaper articles not legal authorities- No locus
standi to request for an Advisory Opinion-Whether a Member of the EALA could only
hold office for a maximum of two terms - Whether the Attorney General of Uganda
infringed the Treaty.
Legal Brains Trust (LBT) Limited v Attorney General of Uganda 331
Amendment
Amendment of Pleadings- Declaratory Orders- Limitation of Time - Adherence to Court’s
Rules of Procedure. Whether the Court had jurisdiction - Whether the actions and
omissions of the 1st Respondent infringed the Treaty- Whether the 2nd Respondent failed
to fulfill his obligations under EAC Treaty.
Professor Nyamoya François v Attorney General of the Republic of Burundi & The 320
Secretary General of the East African Community
Amendments to the Treaty- Interim Orders- Unlawful actions- Whether the applicants
had a cause of action and should be granted interim orders - Whether the challenged
amendments had already entered into force.
The East African Law Society and Others v The Attorney General of the Republic of 92
Kenya and Others
Cessation of sovereignty Justiciability - Sovereign right of Partner States to amend the

Treaty - People’s participation- Prospective annulment - Whether the Treaty amendment
process was proper, carried out in good faith and could be stopped.
The East African Law Society and Others v The Attorney General of the Republic of 68
Kenya and Others
Appeal
Inconsistency between the Court’s Rules and the EAC Treaty – Appeal from the decision of
a Single Judge - Discretion is exercisable on the basis of evidence and sound legal principle
- Finality to litigation - Whether the Appellate Division could entertain an appeal from a
decision of a single Judge.
Attorney General of Kenya v Prof. Anyang’ Nyong’o & 10 Others 144
Elections
Doctrine of estoppel- Election of the East African Legislative Assembly members –Electoral
College-Interveners - Uniformity in treaty application- Whether the reference disclosed
acause of action within the meaning of Article 30 of the Treaty- whether an election was
undertaken within the meaning of Article 50 of the Treaty – Whether the Kenya’s Election
of Members of the Assembly Rules 2001 complied with the EAC Treaty.
Prof. Peter Anyang’ Nyong’o and 10 others v Attorney General of Kenya and 5 Others 16
viii
EALA elections in Uganda Parliament - Restraining orders pending amendment of election
rules - Whether amendments had been tabled before the Parliament of the Republic of
Uganda and if the process of amendment was ongoing - Whether the 1st Respondent
failed to supervise the Government of the Republic of Uganda to ensure that its National
Assembly amended its Rules of Procedure for election of members of EALA- Whether the
election of Members to EALA is the preserve of the Parliament of the Republic of Uganda.
Democratic Party and Mukasa Mbidde v The Secretary General of the East African 305
Community and the Attorney General of the Republic of Uganda
Jurisdiction- East African Legislative Assembly elections - Whether the Applicant had locus
standi - Whether the Court could annul the improper election of Tanzania’s representatives
to EALA.
Christopher Mtikila v The Attorney General of the United Republic of Tanzania and The 62
Secretary General of The East African Community and Others
Environment
Co-operation on in environment and natural resources management- Jurisdiction –
Limitation of time - Permanent injunction - Protection of the environment and natural
resources - Whether the Respondent intended to upgrade a trunk road in the Serengeti
National Park- whether the adjoining Parks would suffer irreversible environmental and
ecological effects - Whether the proposed upgrade infringed the EAC Treaty.
African Network for Animal Welfare (ANAW) v The Attorney General of the United 242
Republic of Tanzania
Forum Shopping
Common Market - Forum shopping- Parallel proceedings in two different courts - whether
the Claimant had rights under the Common Market Protocol prior to its entry into force –
Whether the Reference was time-barred.
Alcon International Ltd v Standard Chartered Bank of Uganda, Attorney General on 207
behalf of the Republic of Uganda and one other
Governance
Community law precedes sovereignty - Denial of entry into Uganda - Deprivation of liberty
– Citizens of Partner States and free movement of persons- Good governance - Uganda’s
sovereign right to deny entry to unwanted persons who are citizens of the Community -
Whether Section 52 of the Uganda’s Citizenship and Immigration Act was inconsistent
with the Treaty - Whether Uganda’s actions of conformed with Article 104 of the EAC
Treaty
Samuel Mukira Mohochi v The Attorney General of the Republic of Uganda 274
Due process –No competence in constitutional referendum dispute resolution - Whether

the Gazette Notice on promulgation of the new Constitution of Kenya breached the rule
of law - Interim Independent Constitutional Dispute Resolution Court which violated the
provisions of peaceful resolutions of disputes.
Mary Ariviza and Okotch Mondoh v The Attorney General of the Republic of Kenya 212
and the Secretary General of the East African Community
Human Rights
Cause of action - Detention - Rule of law- Res judicata - Jurisdiction over human rights
- Responsibilities of the EAC Secretary General - Whether deployment of agents of the
ix
2nd respondent in the Uganda High Court premises, the re-arrest and incarceration of
the applicants after bail had been granted infringed the EAC Treaty - Whether the EAC
Secretary General can initiate and investigate matters falling within ambit of the Treaty.
James Katabazi and 21 Others v Secretary General of The East African Community and 51
The Attorney General Of The Republic Of Uganda
Jurisdiction on human rights issues - Limitation of time- Preliminary objection- Officers

employed by a Partner State wrongly joined as parties - Whether there was a cause of action
against some of the respondents.
Independent Medical Unit v The Attorney General of the Republic of Kenya and Others 190
Computation of time - Jurisdiction - No exhaustion of local remedies required- Rule of

law- Whether arbitrary arrest and detention contravened the EAC Treaty
Plaxeda Rugumba v The Secretary General of the East African Community and the 226
Attorney General of the Republic of Rwanda.
Limitation of time - Cause of action - Interpretative jurisdiction of the court on human

rights issues –Whether the arrest, interrogation, detention and deportation of the Applicant
infringed the EAC Treaty.
Mbugua Mureithi wa Nyambura v The Attorney General of the Republic of Uganda & 349
The Attorney General of the Republic of Kenya And Avocats sans Frontières - Amicus
Curiae
Interim Injunction
Criterion for granting an interim injunction- East African Legislative Assembly elections-
Judicial discretion - Whether interim orders should be granted.
The Democratic Party & Mukasa Fred Mbidde v The Secretary General of the East 370
African Community & The Attorney General of Uganda
Jurisdiction- Wrongful joinder of parties -Interim injunction- Prima facie case with a
probability of success - whether the court could determine the reference and grant an
interim injunction.
Prof. Peter Anyang’ Nyong’o and 10 others v The Attorney General of the Republic of 40
Kenya and 5 others
Judgment
Content of judgments- No concurrent jurisdiction – Reinstatement of Reference -
Preliminary objections - Whether the Court erred in holding that the Reference against
the 1st, 2nd and 3rd Respondents was improper - Whether they erred by failing to make
a finding all the preliminary issues raised by the Respondents-Whether the Court failed
to appreciate the pleadings and by failing to hold that the Appellant and the Respondents
were not parties to the proceedings pending in the Supreme Court of Uganda- Whether
the Court erred in holding that parallel proceedings in two different Courts would cause
confusion between the EACJ and the Courts in Uganda resulting in an execution stalemate.
Alcon International Limited v The Standard Chartered Bank of Uganda, The Attorney 386
General of Uganda and Registrar of the High Court of Uganda
x
Correction of judgments or orders- Discretion- Interested party - whether the extracted
order embodied the Court’s decision in accordance with the Rules or whether it contained
grave mistakes.
George Nangale v Prof. Peter Anyang’ Nyong’o & 10 Others And Attorney General of 47
Kenya and Others
Jurisdiction
Accountable governance - Appellate jurisdiction – Delay in operationalizing the extended
jurisdiction of the EACJ - Partner State non-compliance - Sectoral Council on Legal and
Judicial Affairs - Whether the Treaty conferred appellate jurisdiction on the Court over the
decisions of the Supreme Court of Uganda - Whether the delay in vesting the EACJ with
appellate jurisdiction contravened the Treaty.
Hon. Sitenda Sebalu v The Secretary General of the East African Community, The
Attorney General of the Republic of Uganda Hon. Sam. K. Nuba & Electoral Commission 160
of Uganda
Court’s lack of capacity– Jurisdiction over institutions of the Community - Whether the
Respondent could be had be sued be fore the Court - whether the Court had jurisdiction
to entertain the reference.
Modern Holdings (EA) Limited v Kenya Ports Authority 122
Jurisdiction- No exhaustion of local remedies required - Non Retrospective Treaty

application - The doctrine of res judicata - whether the court had jurisdiction to entertain
the reference - Whether the failure by the Kenya Government to pay the claimants’ terminal
benefits contravened Treaty provisions.
Emmanuel Mwakisha Mjawasi & 748 others v The Attorney General of the Republic of 183
Kenya
Jurisdiction- Invoking internal laws- Preliminary objection The principle of pacta

suntservanda- The Vienna Convention on the Law of Treaties.
Mary Ariviza and Okotch Mondoh v Attorney General of the Republic of Kenya and the 268
Non-retroactivity
Cause of action - Enhanced jurisdiction- Cross-border investments- Non- retroactivity -
Principles of treaty interpretation - Whether the 1st and 3rd Respondents were properly
joined in the reference- Whether Court had jurisdiction over actions taking place before
Common Market Protocol entered into force.
Alcon International Ltd v Standard Chartered Bank of Uganda, Attorney General on 195
behalf of the Republic of Uganda & Registrar of the High Court of Uganda
Jurisdiction in national courts - Procedural irregularity- Res judicata- Non retrospective

application of the EAC Treaty of 2000- The Preamble to the EAC Treaty - Former employees
of the defunct East African Community - Whether there was procedural irregularity and
the Appellants were not afforded an opportunity to present their submissions.
Emmanuel Mwakisha Mjawasi & 748 others v The Attorney General of the Republic of
Kenya 409
xi
Permanent Injunction
Application of Court rules - Fact and Law Jurisdiction- Preliminary Points of law -
Permanent Injunction - The reasons for a judgment - Trans-boundary consultations -
Notice of Motion - Procedural irregularities- Reference - Whether a permanent injunction
could be granted against a Partner State - Whether the First Instance Division failed to
properly weigh the Appellant’s points of law and submissions -Whether a Notice of Motion
or a Reference ought to be filed.
The Attorney General of the United Republic of Tanzania v African Network for Animal 395
Welfare (ANAW)
Separation of Powers
Actions inconsistent with the Treaty-East African Legislative Assembly mandate- Invalid
actions - Private Members Bill - Sectoral Council on Legal and Judicial Affairs- Prospective
annulment-Whether decisions taken by the Sectoral Council were null and void or binding
on EALA.
Calist Andrew Mwatela, Lydia Wanyoto Mutende and Isaac Abraham Sepetu And East 1
African Community
Stay of Proceedings
Discretion to hear oral application - Stay of proceedings pending appeal - Whether the
Court had discretion to hear an oral application and to grant the stay.
Omar Awadh Omar and 7 others v The Attorney General, Republic of Kenya and 2 others 367
Time
Christmas vacation and Court Vacation- Court’s unfettered discretion to extend time –
Delay in lodging an application must be sufficiently explained -The right to enjoy the fruits
of judgment - Whether the application was made in good faith.
Attorney General of Kenya v Prof. Anyang’ Nyong’o & 10 Others 131
Discretion- Extension of time- Filing documents after close of pleadings- Service - Witness
statements - Whether the Respondent was obligated to file and serve witness statements
before the hearing .
African Network for Animal Welfare (ANAW) v The Attorney General of the United 239
Republic of Tanzania
Extension of time for service of a Memorandum and Record of Appeal – Whether a Single
Judge or the First Instance Division had jurisdiction on an application concerning an
appeal.
Continuous chain of actions - Continuing Treaty infringements – No mathematical

computation of time - Unlawful detention continues until it is stopped - Whether the
Reference was time-barred.
Omar Awadh Omar and 7 others v The Attorney General, Republic of Kenya and 361
Others
Earliest knowledge of the acts complained of applies in the computation of time - Improper
raising of preliminary objections- No continuing Treaty violation- States’ responsibilities
to their citizens and residents - Whether the learned Judges erred in deciding that they had
jurisdiction to hear the Reference and it was not time barred
Attorney General of the Republic of Kenya v Independent Medical Legal Unit 377
xii
LEGAL INSTRUMENTS
African Charter on Human and Peoples’ Rights, 1981

Law No 30/2013 Relating to the Code of Criminal Procedure, Rwanda
Protocol on Decision Making by the Council of the East African Community, 2001
Protocol on the Establishment of the East African Community Common Market, 2009
The Constitution of Kenya, 2010
The East African Community Customs Management Act of 2004
The East African Community Mediation Agreement, 1984
The Treaty for the Establishment of the East African Community, 1999
The Treaty for the Establishment of the East Africa Community, (Election of Members of
the Assembly) Rules 200 (Kenya)
The Vienna Convention on the Law of Treaties, 1969
Uganda Citizenship and Immigration Control, Chapter 66 of the Laws of Uganda
OTHER INSTRUMENTS
Rules of Procedure for the Summit of the Heads of State or Government of the East
African Community, 2001
Rules of Procedure for the Council of Ministers of the East African Community, 2001
Rules of Procedure for the Coordination Committee of the East African Community,
2000
Rules of Procedure of the Parliament of Uganda 2006
The East African Community Customs Management Regulations of 2006
The East African Community Common Market (Free Movement of Persons) Regulations,
Annex 1
The East African Court of Justice Rules of Procedure
xiii
ABBREVIATIONS
A.C. Appeal Cases

AG Attorney General
All E.R. All England Reports
Ch. Chancery Division
DPJ Deputy Principal Judge, EACJ
E.A. East Africa Law Reports
EAC Treaty The Treaty for the Establishment of the East African Community
EAC East African Community
EACA East African Court of Appeal
EACJ East African Court of Justice
EALA East Africa Legislative Assembly
ECJ European Court of Justice
ECR European Court Reports
H.C.C.C High Court Civil Case
H.C.C.S High Court Civil Session
ICJ International Court of Justice
J Judge
JA Justice of Appeal
JJA Justices of Appeal
JJ Justices/ Judges
K.B. King’s Bench Division
K.L.R. Kenya Law Reports
Misc. Miscellaneous
P President of the EACJ
PCIJ Permanent Court of International Justice
PJ Principal Judge, EACJ
SG Secretary General
TLR Tanzania Law Reports
U.L.R Uganda Law Reports
v versus
VP Vice President, EACJ
WTO World Trade Organization
W.L.R. Weekly Law Reports
Application No 1 of 2005
Calist Andrew Mwatela, Lydia Wanyoto Mutende and Isaac Abraham Sepetu And
East African Community
Moijo M. ole Keiwua P, Joseph Mulenga VP, Augustino S. L. Ramadhani J, Kasanga

Mulwa J, Joseph S. Warioba J
October 4, 2006
Actions inconsistent with the Treaty-East African Legislative Assembly mandate-

Invalid actions - Private Members Bill - Sectoral Council on Legal and Judicial Affairs-
Prospective annulment- Whether decisions taken by the Sectoral Council were null
and void or binding on EALA
Articles 13, 14 (3) (c) 15 (2), 16, 59(1), 14(3)(i) and 151 of the Treaty for the
Establishment of the East African Community, - Rules 1 (2) and 20 of the East African
Court of Justice Rules of Procedure, 2004
In November 2004, four Private Member’s Bills were pending in the East African
Legislative Assembly. During the 9th meeting of the Council of Ministers held on
24th November 2004, Council decided that policy-oriented Bills with implications
on the Partner States’ sovereign interest and budgetary aspect of the Community
should only be submitted to the Assembly by the Council and not through Private
Member’s Bills. Council then assumed responsibility for the Bills namely: the East
African Community Trade Negotiations Bill (2004); The East African Community
Budget Bill ; The East African Immunities and Privileges Bill ; and The Inter-
University Council for East Africa Bill and requested the Assembly to postpone
debate on the Trade Negotiations Bill pending the conclusion of a study into its
implications. Meanwhile, the Inter-University Council Bill was submitted to the
Sectoral Council on Legal and Judicial Affairs for legal input.
After review, the Sectoral Council decided that protocols, within the meaning of
Article 151 of the Treaty, rather than legislation enacted by the Assembly, were
sufficient to provide for the Inter-University Council and for immunities and
privileges for the Community and it advised Council to withdraw the two Bills from
the Assembly.
The Applicants who were members of EALA brought this Reference challenging the
validity of the meeting of the Sectoral Council on Legal and Judicial Affairs held on
13th to 16th September 2005 and the decisions taken in relation to Bills pending
before the East African Legislative Assembly. They claimed that the report of the
Sectoral Council meeting was null and void ab initio and all decisions, directives and
actions contained in or based on it are null and void.
They also questioned the lawfulness of the decisions of the Council and whether they
were binding on the Assembly
East African Court of Justice Law Report 2005 - 2011
2
Held:
1. The Court held that the establishment of the Sectoral Council was inconsistent with
the provisions of Article 14(3) (i) and the meeting of 13th to 16th September 2005
was not lawful meeting and that the decisions of the meeting were ipso facto invalid.
2. Since the purported Sectoral Council had been in place from 2001 and had made
decisions, the doctrine of prospective annulment was applied and the Court’s decision
to annul the Sectoral Council would not have retrospective effect.
3. The Council had no power to take over Bills without observing the Assembly Rules
and decisions of the Council had no place in areas of jurisdiction of the Summit,
Court and the Assembly.
4. The Assembly’s permission must be sought to withdraw a Bill irrespective of whether
the Bill in question had been a Private Member’s Bill or a Community Bill.
5. As a creature of the Treaty, the Assembly can only have competence on matters
conferred upon it by the Treaty. The Assembly has no power to legislate on matters
on which the Partner States have not surrendered sovereignty.
Cases Cited:
Defrenne v Sabena [1981] All E. R. 122;
India in Golak Nath v the State of Punjab [1967] AIR 1643
Linkletter v Walker Warden 381 US [1965] 618;
Uganda v Commissioner of Prisons ex-parte Matovu [1966] EA 645
Judgment
1. This is a reference under Article 30 of the Treaty for the Establishment of the East
African Community (the Treaty), instituted on 7th December 2005 by three Members
of the East African Legislative Assembly, namely: Calist Andrew Mwatela, Lydia
Wanyoto Mutende and Isaac Abraham Sepetu (the applicants), in an application by
Notice of Motion pursuant to rules 1 (2) and 20 of the East African Court of Justice
Rules of Procedure (the Court Rules). The respondent is the East African Community
which under Article 4 of the Treaty, is a body corporate with inter alia power to sue
and be sued in its own name.
2. In their application, the applicants challenge the validity of the meeting of the Sectoral
Council on Legal and Judicial Affairs (the Sectoral Council) held on the 13th to
16th September 2005 and the decisions taken by the said meeting in relation to Bills
pending before the East African Legislative Assembly (the Assembly), and they seek
an order by the Court that the report of the Sectoral the Council meeting held on 13
to 6 September 2005 is null and void ab initio and all decisions, directives and actions
contained in or based on it are null and void.
3. In the response to the application the respondent opposes the application and
supports the validity of the Sectoral Council’s impugned decisions. Both parties to
the application opted to rely on the pleadings and the supporting affidavits and the
reports and correspondence which were annexed thereto and so no oral evidence was
adduced.
4. It was common ground that what gave rise to the dispute were four Private Member’s
Calist Andrew Mwatela and Others v EAC
3
Bills, which in November 2004 were pending legislation in the Assembly. The Bills are
the East African Community Trade Negotiations Bill (2004) (the Trade Negotiations
Bill), The East African Community Budget Bill (the Budget Bill), The East African
Immunities and Privileges Bill (the Immunities and Privileges Bill) and The Inter-
University Council for East Africa Bill (the Inter-University Council Bill).
5. The Council of Ministers (the Council) at its meeting held on 24thNovember 2004,
decided that policy oriented Bills such as those that have implications on the Partner
States’ sovereign interest and on the budgetary aspect of the Community, ought to be
submitted to the Assembly by the Council under Article 14 (3) (b) of the Treaty as
opposed to being submitted as Private Member’s Bills under article 59 of the Treaty.
The Council therefore decided to assume responsibility for the four pending Bills
for consideration and submission to the Assembly. We were not able to ascertain
the extent of consultation that took place between the Council and the Assembly
before the Council decided to assume responsibility over the Bills. But we found out
that in November 2004 and again in February 2005, the Chairperson of the Council
requested and the Assembly agreed to postpone debate on the Trade Negotiations
Bill.
6. During the budget debate in the May 2005 session of the Assembly, some issues
connected with the pending Private Member’s Bills were raised as a result of which
the Chairperson of Council proposed a joint meeting between the Assembly and the
Council. Before that meeting was held, the Council held its 10th meeting on 4th to 8th
August 2005, at which it decided that development of legislation on trade negotiation
be stayed pending conclusion of a consultancy study into all implications of such
legislation, and that the Inter-University Council Bill be submitted to the Sectoral
Council for legal input and subsequent submission to the Assembly.
7. The joint meeting, referred to as the High Level Retreat, was held at Ngurdoto the
Mountain Lodge on 10 and 11 August 2005. At the conclusion of the meeting,
the Chairperson undertook that the revised Inter-University Council Bill and the
Immunities and Privileges Bill would be submitted to the Assembly session due to
start on 19th November 2005 However , the said Bills were not submitted to the
Assembly as undertaken by the Chairperson because the Sectoral Council decided
otherwise.
8. The Sectoral Council held a meeting on 13 to 16 September 2005, at which it decided
that protocols, within the meaning of Article 151 of the Treaty, rather than legislation
enacted by the Assembly, were sufficient to provide for the Inter-University Council
and for providing immunities and privileges for the Community. Apparently a
Protocol for the establishment of the Inter-University Council was concluded on
13th September 2002, and had been ratified by Tanzania and Uganda and only
awaited ratification by Kenya; and a draft Protocol on immunities and privileges for
the Community, its organs and institutions and persons in its service was in process
of consultation and had been considered by the Permanent Secretaries in February
2005.
9. The Sectoral Council observed that the contents of the Bills were respectively
similar to the provisions of the said Protocols and accordingly it decided to advise
the Council to withdraw the two Bills from the Assembly. In furtherance of these
4
decisions, the Sectoral Council (a) urged that the Ministers of the Partner States
responsible for Foreign Affairs should urgently meet to consider and conclude the
Protocol on Immunities and Privileges so as to bring it into force by 1st January 2006;
and (b) requested that the Chairperson of the Council should inform the Speaker of
the Assembly of these decisions. Two things followed.
10. On 16th September 2005 the Secretary General of the Community wrote to the
Speaker informing him, inter alia, that the Council had decided to withdraw from the
legislative business of the Assembly the Immunities and Privileges Bill and the Inter-
University Council Bill. Secondly according to the Official Report of Proceedings of
the Assembly, on 27th September 2005, Mr. John Koech, a Member of the Council,
apparently on behalf of the Chairperson, made a Ministerial Statement from the
floor of the Assembly, recalling the Council decision at its 9th Meeting held on 24th
November 2005, to assume responsibility of the four Bills, its subsequent request to
the Speaker to defer consideration of the Bills until policy input by the Council had
been finalized and also gave an update to the Assembly on the current position of
each Bill.
11. In a nutshell he said that after receiving comments by the Partner States on the
Bills and subjecting the Bills for appropriate policy input by the Sectoral Council,
the Council was requesting that development of legislation on trade negotiations be
stayed pending conclusion of consultation with Partner States on a consultancy study
report; and that the Community Budget Bill be stayed pending submission of the
Partner States’ comments on it to relevant Sectoral Committees.
12. He also disclosed that it was the view of the Partner States that both the Immunities
and Privileges Bill and the Inter-University Council Bill be withdrawn from the
Assembly because in either case a Protocol within the meaning of Article 151 of the
Treaty is sufficient. The Ministerial statement was not well received and after some
uncomplimentary reactions, the Assembly resolved to have a substantive debate
on the Ministerial statement at sometime in the future. However, no Motion was
subsequently moved to initiate a debate on the matter. Instead, on 7th December
2005, the applicants filed this application which the respondent opposed as we
indicated earlier.
13. At the hearing, the applicants were represented by a team of counsel led by Professor
F.E. Ssempebwa and consisting of Mr. D.W. Ogalo, Mr. M. Marando, Mr. M.S
Kaggwa and Mrs S.N.Bagalaaliwo while the respondent was represented by a team
led by Mr. W. Kaahwa, Counsel to the Community, and consisting of Ms Makena
Muchiri, Deputy Chief State Counsel (Kenya), Mr. S.N. Tuimising, Senior State
Counsel (Kenya), and Ms Isabelle Waffubwa, Legal Officer of the Community. The
East African Law Society, with leave of the Court, appeared in the application as
amicus curiae and was represented by Mr. Tom Nyanduga, President of the Society,
Mr. Don Deya, Chief Executive Officer of the Society, Mr. Alex Mgongolwa and Mr.
Nassoro Mohammed who are members of that Society.
The Issues
14. A scheduling conference in terms of Rule 52 of the Court Rules was held on 15th June
2005 at which time two sets of issues were submitted by the parties. With the help of
5
the Court the issues were merged as follows:

i. Whether the meeting held between 13 and 16 September 2005 was a meeting of
Sectoral Council on Legal and Judicial Affairs as envisaged in the Treaty?
ii. Whether Protocols are legally sufficient in regard to immunities and privileges
and for the formal establishment of Inter-University for East Africa Council so as
to render the enactment of the Community’s Acts for those purposes unnecessary.
iii. Whether the Inter-University Council for East Africa Bill 2004 and the East
African Community and Privileges Bill 2004 were properly withdrawn from the
Assembly.
iv. Whether or not under Article 59 a Member could move in the Assembly the East
African Community Trade Negotiations Bill 2004, East African Immunities and
Privileges Bill 2004, and the Inter-University Council for East Africa Bill 2004.
v. Whether the decisions of the Council are binding on the Assembly under Article
16 of the Treaty.
vi. Whether the introduction of a Bill under Rule 64 (5) of the Assembly Rules of
Procedure constitutes the initiation of the legislative process under those Rules.
vii. Whether or not the decision taken by the Council at its 10th Meeting held on 4to
8 August 2005 on the East African Trade Negotiations Bill 2004 is lawful and in
accordance with the provisions of the Treaty.
viii. Whether or not the decision taken by the Sectoral Council at its meeting on 13to
16 September 2005 on the East African Community Immunities and Privileges
Bill 2004 and the Inter-University Council for East Africa Bill, 2004 is lawful and
in accordance with the provisions of the Treaty.
ix. Whether the decisions of the Sectoral Council are binding on the Assembly.
x. Whether the Council followed the rules of the House to withdraw Bills.
xi. Whether the Council met to make the decision that was communicated to the
Speaker by the Secretary General.
xii. Whether the decision of the Sectoral Council was consistent with its mandate.
xiii. Whether the Sectoral Council on Legal and Judicial Affairs by virtue of their
decisions taken on September 13 to 16 2005 purported to discharge functions
bestowed upon the Assembly.
xiv. Whether the Council and Sectoral Council on Legal and Judicial Affairs have
usurped the powers of the Counsel to the Community, Council of Ministers and
the East African Court of Justice as provided under the Treaty.
xv. Whether the decisions of the Council and those of the Sectoral Council curtailed
or interfered with the Assembly’s functions.
xvi. Whether the withdrawal of the Bills by the Council of Ministers as an organ of the
Community is subject to the Assembly’s Rules.
xvii. Whether it is obligatory for Council of Ministers to meet so as to communicate
the decisions of the Sectoral Council to the Assembly having directed the
Chairperson of the Council through the Secretary General.
xviii. Whether the Partner States have the Prerogative on who should attend organ
meetings like those of the Council and Sectoral Council.
15. In their respective addresses to the Court, counsel argued the issues in clusters because
they realized, quite correctly in our view, that many of the issues touched on the same
6
or related points. Unfortunately they did not configure the clusters uniformly and so
in considering and determining the issues in this judgment we are not able to follow
the order counsel followed in addressing the Court. We find it more expedient to
consider the issues under the following broad headings:-
(a) Establishment of the Sectoral Council and its meeting of September 2005
(b) Status of the contentious Bills
(c) Relationship of the Council and the Assembly on legislation
16. The applicants’ challenge of the validity of the Sectoral Council is two pronged. First
they contend that the Sectoral Council was not established as envisaged under, or in
accordance with the provisions of the Treaty. Secondly, they contend that the meeting
held on 13th to 16th September 2005 was not a properly constituted meeting of the
Sectoral Council. The two contentions are grounded on
1) The provisions of Article 14 of the Treaty,
2) The decision of the Council at its 1st Meeting to set up the Sectoral Council,
3) The attendance list of the meeting of the Sectoral Council held on 13 to 16
September 2005
17. In his submissions on the composition of the Sectoral Council, Professor Ssempebwa
pointed out that the Treaty prescribes membership of the Council to consist of
Ministers responsible for regional co¬operation in each Partner State “and such other
Ministers of Partner States as each Partner State may determine”; and that under
Article 14 , the Treaty empowers the Council to establish “from among its members”
Sectoral Councils to deal with matters that the Council may delegate or assign to
them. He argued that when in its 10th Meeting held on 8to 13 January 2001, the
Council adopted a recommendation to constitute meetings of Attorneys¬ General
of the Partner States into the Sectoral Council on Legal and Judicial Affairs, it acted
ultra vires its said power because it thereby established a body that was not composed
of members of the Council.
18. Professor Ssempebwa further submitted that the Council was not empowered
to establish a Sectoral Council from among persons other than its members. He
contended that save for the Attorney General of the Republic of Uganda who is
designated a Minister under the National Constitution, the Attorney General of the
Republic of Kenya and the United Republic of Tanzania are not similarly designated
Ministers, and consequently for the purposes of the Treaty those two were not
members of the Council.
19. In the alternative, he submitted that even if it is held that the Sectoral Council was
lawfully established, the meeting held on 13 to 16 September 2005 was not a lawfully
constituted meeting of the Sectoral Council. He referred to the report of that meeting
in which it is indicated that only the Attorney General of Uganda attended in person
while the Attorney General of Kenya was represented by the Solicitor General and
the Attorney General of Tanzania was represented by the Deputy Attorney General/
Permanent Secretary, Ministry of Justice and Constitutional Affairs, both of whom
were clearly not Ministers.
20. Professor Ssempebwa referred to two principles of interpretation of treaties. One is
that the words of a treaty must be given their natural meaning unless that would
lead to some unreasonable or absurd result. The other is the principle of effectiveness
7
which is that in interpreting a Treaty the Court must ascertain its objective and give
effect to it. He submitted that the objective of the Treaty in creating the Council was
to create a strong policy making organ of the Community composed of persons with
authority from the Partner States to make binding decisions. The Treaty does not
leave room for bureaucrats taking over decision-making at that level.
21. On the other hand, in his opening address at the hearing, Mr. Kaahwa, the learned
Counsel to the Community, while acknowledging that the Treaty is the ground norm
of the integration process for the Community, from which all other legal instruments
in the Community derive, subsist and draw legality, and whose provisions must be
strictly adhered to, stressed that the Treaty establishes a framework of organs and
institutions entrusted with specific mandates whose execution must be guided by
adherence to the rule of law and the principles of harmonization. He also stressed that
the Community functions on basis of consensus as its survival depends on goodwill
of the Partner States and harmonious working relationship with the organs and
institutions and on their agreeing on all aspects of the Community’s development.
He urged the Court to have these matters in mind in answering the issues before it.
22. In the response to the application, the respondent maintains that the Sectoral Council
meeting held on 13 to 16 September 2005 was validly convened and constituted and
that its decisions are valid. In reply to Professor Ssempebwa’s first contention, Mr.
Kaahwa argued at length that the Attorney General l of Kenya and Tanzania fit
within the Treaty definition of “Minister” and are therefore potential members of the
Council.
23. In the course of the submissions Mr. Kaahwa as Counsel to the Community informed
the Court from the bar that membership of the Council is not static. In practice, the
full membership is only ascertainable at the time of meetings, when each Partner State
determines its representation depending on the agenda of the particular meeting.
He argued that by virtue of Article 13 of the Treaty, each Partner State retains an
executive prerogative to designate its representative(s) on the Council in addition to
its Minister responsible for regional co¬operation. He submitted that the exercise of
that prerogative may not be inquired into by the Court and cited the case of Uganda
vs. Commissioner of Prisons ex-parte Matovu [1966] EA 645.
24. He also submitted that the prerogative has been preserved by the Council Rules of
Procedure made under Article 15 (2) of the Treaty. He maintained that in due exercise
of that prerogative, Kenya and Tanzania designated their respective Solicitor-General
and Deputy-Attorney General /Permanent Secretary to represent their Attorney
General l at the meeting of the Sectoral Council, notwithstanding that they are not
Ministers.
25. In our view, Professor Ssempebwa’s first contention is a departure from the pleadings
in this Reference. Throughout the pleadings what was in issue was the composition
of the meeting held on 13 and 16 September 2005. All the averments in part ‘A’ of
the Reference are concerned with the session of the Sectoral Council held on 13
to 16 September 2005. Indeed when the respondent pleaded in paragraph 5 of its
Response that the Council had established the Sectoral Council at its 1st Meeting,
the applicants retorted in paragraph 3 of their Reply to the Response thus: “With
regard to paragraph 5 of the Response, the applicants take note that the Council
8
may have established Sectoral Councils as resolved in pages 28 – 34 of Annex ‘A’ to
the Response. The Applicants aver, however, that the establishment of such Sectoral
Council does not touch on the issues raised in the Reference as the individuals who
sat on 13– 16 September 2005 are not members of the Council under Article 14 (3)
(i) of the Treaty.”
26. As a result, issue 1 as framed, expressly relates to that session and we take it that
issue 18 also relates to the same session. However, the question whether the Sectoral
Council was established in accordance with the provisions of the Treaty is a legal one
and was canvassed fully. Therefore, we have to determine it though it did not feature
in the pleadings. We agree with the counsel for the applicants that the Council is
empowered under Article 14 to establish Sectoral Councils from among its members
only. Membership of the Council under the same Article is restricted to Ministers
and the Treaty defines a Minister as follows: “Minister” in relation to a Partner State,
means a person appointed as a Minister of the Government of that Partner State and
any other person, however entitled, who, in accordance with any law of that Partner
State, acts as or performs the functions of a Minister in that State;
27. According to the record of the 1st Meeting of the Council held on 8 to 13 January,
2001 the delegations of the Partner States included their respective Ministers
responsible for regional cooperation and several others of divers portfolios. We take
it that those other Ministers were the ones each Partner State designated as Members
of the Council under Article 13. We note that the delegation of Uganda included the
Attorney General but those of Tanzania and Kenya did not.
28. It was at that Meeting that the Council agreed to designate the Meeting of the Attorney
General l of the Partner State as the Sectoral Council though there is no indication
that the Attorney General l of Kenya and Tanzania were Members of the Council.
29. Furthermore, although the Attorney ¬General of Uganda is, by virtue of Article 119
of the Constitution of the Republic of Uganda, a Cabinet Minister and consequently
qualified to be a Member of the Council, the Attorney General of Tanzania is not.
From our reading of Article 54(1) and (4) of the Constitution of the United Republic
of Tanzania the Attorney General of Tanzania is not a Minister. In the case of
Kenya, however, though the Constitution does not designate the Attorney General
as a Minister, the Interpretation and General Provisions Act includes the Attorney
General in the definition of a Minister. On the basis of that law it appears to us that
for the purposes of the Treaty the
30. Attorney General of Kenya is a Minister as “a person who in accordance with a law of
[Kenya] acts as or performs the functions of a Minister in [Kenya]”. So, for purposes
of the Treaty the two Attorney General l, of Kenya and Uganda, are Ministers.
However, for the Sectoral Council to be properly constituted it must comprise the
representatives of all Partner States. This is underlined by Rule 11 of the Rules of
Procedure for the Council of Ministers which provides:
“The quorum of a session of the Council shall be all Partner States representation.”
This must apply to the Sectoral Councils since the decisions of the Sectoral Councils
are deemed to be those of the Council of Minister under Article 14(3)(i) of the Treaty.
31. In the circumstances we find that the establishment of the Sectoral Council was
inconsistent with the provisions of Article 14(3)(i). However, since the purported
9
Sectoral Council has been in place from 2001 and by now has, undoubtedly made
a number of decisions, which would be unwise to disturb, we are of the considered
opinion that this is a proper case to apply the doctrine of prospective annulment. We
order that our decision to annul the Sectoral Council shall not have retrospective
effect.
32. We think that the doctrine of prospective annulment which has been applied in
various jurisdictions is good law and practice. See The Court of Justice for European
Community in Defrenne vs. Sabena [1981] All E. R. 122;US Court of Appeals 5 Circuit
in Linkletter vs. Walker Warden 381 US [1965] 618; and the Supreme Court of India
in Golak Nath vs. The State of Punjab [1967] AIR 1643.
33. As for the second contention by Professor Ssempebwa, we note from Annex ‘A’ to
the Reference, which is a report of the meeting of the Sectoral Council on Legal
and Judicial Affairs held on September 13– 16th 2005, that the participants were
the Attorney -General / Minister of Justice and Constitutional Affairs of Uganda,
the Deputy Attorney General / Permanent Secretary, Ministry of Justice and
Constitutional Affairs of Tanzania representing the Attorney General and the
Solicitor General of Kenya also representing the Attorney General. However, by the
Treaty the Partner States bound themselves in Article 13 and 14 to be represented
in the Council by their respective Ministers responsible for regional cooperation
and other Ministers only and thereby delimited the prerogative of a Partner State in
determining its representation on the Council. In the circumstances the decisions in
Uganda vs. Commissioner of Prisons ex-parte Matovu (supra) is not applicable to the
facts of this case.
34. We note that the Treaty does not provide for the members of the Council or Sectoral
Council to be represented at meetings by non¬-members. We think that this was
deliberate to avoid distortion of the elaborate structural hierarchy of representation
of the Partner States at the different levels in the organizational framework of the
Community. Clearly if members of the Coordinating Committee, which reports to
Council, are allowed to represent members of the Council or the Sectoral Council at
their meetings, the objective of separation of functions of the two organs would be
defeated.
35. We therefore do not see any justification for the respondent’s attempts to make
in roads into the very clear words of Article 13 of the Treaty that, Ministers of the
Partner States can appoint persons who are not Ministers to attend meetings of
Sectoral Councils or those of the Council purportedly on their behalf. It is not in
dispute that the Deputy Attorney General of Tanzania and the Solicitor General of
Kenya are not members of the Council.
36. We would also like to dispose of the attempt to confuse the purport of Article 15
(2) of the Treaty by reading into it a stipulation that discretion still remains in the
Partner States to send to the meetings of Council and those of Sectoral Councils
persons who are not Ministers contrary to the requirement of Article 13 of the
Treaty. Article 15(2) is concerned with meetings of the Council and determination of
procedure at those meetings. The Council Rules define the expression “Partner State
representatives/representation” to mean a Minister designated to represent such a
State in the meetings of the Council. We do not therefore see how Article 15 (2) and
10
the Council Rules can be relied upon to show that there is a discretion still left for
the Partner States to send persons who are not Ministers to the Council or Sectoral
Council meetings.
37. That argument was advanced in an effort to bolster the issue as to whether it is
the prerogative of the Partner States to designate such persons as they deem fit to
represent them at lawfully convened meetings of either the Council or the Sectoral
Council. It is quite clear that the formulation of Council rules has followed faithfully
the provision of Article 13 of the Treaty and it is not understood in what manner
whatsoever, the Council Rules can be said to permit representation at those meetings
by persons other than those expressly determined in strict compliance with Article
13 of the Treaty. We therefore have no hesitation in reiterating that the meeting of
13 to 16 September 2005 was not a lawful meeting of a Sectoral Council and that the
decisions it handed down in respect of the two Bills was not valid decision of the
Sectoral Council.
38. Before we conclude on this aspect of the case, there is a matter to which we would draw
attention that though the composition of the Council is established under Article 13
of the Treaty, the total membership is not readily ascertainable, since it is only the
membership of Ministers responsible for regional cooperation which is static and
ascertainable. We were informed during arguments that membership of additional
Ministers is determined by the agenda of a particular meeting of the Council. We
would have thought that a more transparent way of knowing the composition of
Council Members should have been evolved and put in place by now. This is good
sense and good law since it will avoid uncertainty which usually degenerates into
disputes such this one before the Court.
39. Having held, as we have, that the meeting was not a lawful meeting of Sectoral Council
on legal and Judicial Affairs and that the decisions of the meeting was not a lawful
meeting of a Sectoral Council on Legal and Judicial Affairs and that the decisions of
the meeting were ipso facto invalid, it is unnecessary to consider if the said decisions
are consistent with its mandate (issue 12) and binding on the Assembly (issue 9) and
whether the Sectoral Council purported to discharge the functions of the Assembly
(issue 13) or usurped the powers of the Council, the Court and/or Counsel to the
Community (issue 14). We also find that it would be futile to discuss whether
the council met and whether it was obligatory for it to meet in order to make the
decisions which were communicated to the Speaker by the Secretary General (issues
11 and 17). In any case it is apparent from the affidavit of Amanya Mushega, the then
Secretary General, that the decisions he communicated to the Speaker were made by
the purported Sectoral Council meeting alone.
40. We would also recall the fact that the issue as to whether Protocols are legally sufficient
to render legislation unnecessary (issue 2) was one of those decisions of the meeting
of the Sectoral Council held on 13 to 16 September 2005 which meeting, we have
found elsewhere in this judgment, not to have been held as required by the Treaty.
41. In view of that finding, this Court would not like to go into that question of sufficiency
or otherwise of Protocols because to do so would be to encroach onto the jurisdiction
of the Assembly.
It is also obvious that because they are invalid, the decisions of that meeting cannot
11
be deemed to be decisions of the Council under Article 14(3) (i) of the Treaty. In his
letter to the Speaker, the Secretary General deemed them to be Council decisions
because he assumed wrongly that they were valid. In the Ministerial Statement to the
Assembly, Mr. John Koech, did not give as a reason for withdrawal or stay of the Bills
that they were decisions of the Council. In respect of two Bills he said Council was
requesting for postponement and in respect of the other two he asserted that it was
the view of the Partner States that they should be withdrawn.
42. Issues 3, 6, 10 and 16 concern the introduction and withdrawal of Bills from the
Assembly. The debate in the Assembly is contained in the Hansard of 27th September
2005 when the Speaker directed that it was up to the owners of the Bills, to decide
whether to continue with the Bills in the Assembly or let the Council takeover the
Bills. Thereupon the issue was shelved for debate on a future occasion. We would
here refer to Mr. Kaahwa’s helpful concession on behalf of the respondent that the
Assembly Rules also bind the Members of the Council who are Members of the
Assembly.
43. We also see that under Article 59 (1) of the Treaty any Member of the Assembly
may introduce a Bill. This shows that the Council does not have exclusive legislative
initiative in the introduction of Bills in the Assembly. In that connection, we appreciate
the difficulty faced by the Assembly upon receipt of the letter by the Secretary General
which made it quite clear that the matter in controversy between the Assembly and
the Council had reached an impasse and had to come to Court for the opposing views
on the interpretations of the Treaty to be resolved. Mr. Marando drew our attention
and we agree with him, and since it was also conceded by the respondent in argument
before us, that the Inter-University Bill as well as the Immunities and Privileges
Bill had undergone the First Reading, and had in our view, become property of the
Assembly.
44. Accordingly, we see no basis, upon which the view that the four Bills had been taken
over by the Council, can be supported because the Treaty has not bestowed any power
on the Council to take over Bills without observance of the Assembly Rules and we
hold that the only lawful way of withdrawing Bills which have become property of
the Assembly, as the four Bills had become, is under Rule 34 of the Assembly Rules
which provides for a Motion to be introduced in the Assembly for that purpose. The
Motion requirement is because the four Bills which were Private Members Bills; were
introduced into the Assembly by means of Motions. In its relevant parts Rule 34 says:
34 (1) A motion or an amendment to the motion may be withdrawn at the request of
the mover by leave of the House or Committee before the question is put.
45. We therefore find that the appearance before the Assembly of Mr. Koech, a Member
of Council on behalf of the Chairperson, without more, is ineffective as a means of
withdrawing the Bills, in that a bare statement which was not a Motion to withdraw
any of the Bills does not accord with the requirement of Rule 34 aforesaid and so in
our opinion, was the letter dated 16th September 2005 addressed by the Secretary
General to the Speaker of the Assembly. We accept that once a Bill is in the Assembly,
its permission must be sought to withdraw such a Bill. The permission requirement
applies irrespective of whether the Bill in question had been a Private Member’s Bill
or a Community Bill. Issue 5 is whether the decisions of the Council are binding on
12
the Assembly under Article 16 of the Treaty.
46. The issue arose because of the respondent’s contention that the decision of Council
given pursuant to Article 14 of the Treaty override the bar stipulated in Article 16
thus: “other than the Summit, the Court and the Assembly within their areas of
jurisdictions.” The respondent further submitted that because of the all embracing
power of the Council under Article 14, the Assembly is bound by the Council decision
to withdraw the Bills.
47. However, the applicants dispute that contention on the basis of Article 49 (1) of the
Treaty which is on the Assembly’s functions and also drew attention to Article 14 (3)
(b) of the Treaty which has as one of the functions of the Council the initiation of
legislation; but the Article does not imply that the Council has the power to withdraw
Bills at will unless in terms of the Assembly Rules.
48. Mr. Ssempebwa examined Article 16 of the Treaty which provides that decisions
of the Council bind other organs and institutions of the Community “other than
the Summit, the Court and the Assembly within their jurisdiction”. He emphasized
those words which he said are meant to underscore the separate and independent
jurisdictions of these organs of the Community. The matter at issue in this respect is
withdrawal of Bills which have become the property of the Assembly and therefore
within its jurisdiction.
49. We would like to draw attention to the provisions of paragraph (3) (c) of Article 14
which provides: “ For purposes of paragraph 1 of this Article, the Council shall; (c)
Subject to this Treaty, give directions to the Partner States and to all other organs and
institutions of the Community other than the Summit, Court and Assembly.”
50. We are of the firm view that the combined effect of explicit provisions in Article 14
(3) (c) and Article 16 is dispel any notion that the decisions of the Council albeit on
policy issues bind the Assembly in respect of any matter within its jurisdiction. We
think the interpretation of Article 16 of the Treaty is a core issue underlying this
application and would refer to it in its entirety not only to deal with the opposing
assertions of the parties but to bring to light certain inelegancies detected in the Table
of Contents of that Article, its heading in the body of the Treaty and finally its actual
contents. Article 16 is as follows:
51. Subject to the provisions of this Treaty, the regulations, directives and decisions of the
Council taken or given in pursuance of the provisions of this Treaty shall be binding
on the Partner States, on all organs and institutions of the Community other than the
Summit, the Court and the Assembly in their area of jurisdictions, and those to whom
they may under the Treaty be addressed.
52. There is a variance between what the Table of Contents of the Treaty has for Article 16
as “Effect of Regulations, Directives, Decisions and Recommendations of the Council”
together with the heading of the Article which also has the word “recommendations”
included while the body of Article 16 does not include that word “recommendations”.
This is obviously an inelegant drafting which should be corrected either to eliminate
the word “recommendations” from the Table of contents and from the heading of
the Article or amend the Article to include that word in the body of the Article as
well because it will one day lead to some uncertainty which should be avoided by a
corrective amendment.
13
53. We see sense in the applicants’ submission that since the Assembly is a representative
organ in the Community set up to enhance a people centred co¬operation, its
independence under Article 16 of the Treaty should be preserved because the Treaty
has not endowed the Council with any power to interfere in the operation of the
Assembly. We agree and it is our view that Article 16 of the Treaty does not bear
the meaning ascribed to it by the respondent in which it contended that decisions
of Council bind the Assembly, Article 16 of the Treaty notwithstanding. In light
of Articles 14 and 16, we have come to the conclusion that decisions of the Council
have no place in areas of jurisdiction of the Summit, Court and the Assembly. Issue
4 is whether or not under Article 59 of the Treaty a member could move in the
Assembly the Trade Negotiations Bill, the Immunities and Privileges Bill, and the
Inter-University Council Bill.
54. The Respondent pleaded in paragraph 9 of the Response as follows: ¬“At its 9th
Meeting held on 24 November 2004, the Council decided that policy oriented Bills
such as those that have implications on the Partner States’ sovereign interests and
on the budgetary aspects of the Community ought to be submitted to the Legislative
Assembly by the Council under Article 14.3(b) of the Treaty as opposed to being
proposed or introduced by any member of the Assembly under Article 59 of
the Treaty. The Council, therefore, assumed responsibility for “The East African
Community Trade Negotiations Bill, The East African Community Budget Bill, The
East African Community Immunities and Privileges Bill and The Inter-University
Council for East Africa Bill as Council Bills for consideration and submission to the
Legislative Assembly.”
55. In paragraph 10 of the response the Respondent pleaded that protocols can sufficiently
provide for immunities and privileges for the Community and also for the Inter-
University Council for East Africa. Issues 2 and 4 arose from the above pleadings by
the Respondent. Article 59 States:
1) Subject to the rules of procedure of the Assembly, any member may propose any
motion or introduce any Bill in the Assembly: Provided that a motion which
does not relate to the functions of the Community shall not be proposed in the
Assembly, and a Bill which does not relate to a matter with respect to which Acts
of the Community may be enacted shall not be introduced into the Assembly.
2) The Assembly shall not:
I. Proceed on any Bill, including an amendment to any Bill that, in the opinion of
the person presiding, makes provision for any of the following purposes:
II. For the imposition of any charge upon any fund of the Community;
III. For the payment, issue or withdrawal from any fund of the Community of any
moneys not charged thereon or the increase in the amount of any such payment,
issue or withdrawal;
3) For the remission of any debt due to the Community; or Proceed upon any
motion, including any amendment to a motion, the effect of which, in the opinion
of the person presiding, would be to make provision for any of the said purposes.
56. There is no doubt that Article 59 provides for introduction of Private Member’s
Bills. It is also clear to us that both paragraphs (1) and (2) provide restrictions to
the general power of legislation by the Assembly. The proviso to paragraph (1)
14
prohibits the introduction of any motion in the Assembly which does not relate to
the functions of the Community and does not relate to a matter with respect to which
Acts of the Community may be enacted. Paragraph (2), on the other hand, prohibits
the Assembly from proceeding with any Bill which imposes a charge on any fund
of the Community. It is abundantly clear to us that the prohibition under the two
paragraphs apply to any member of the Assembly, both the members and also the
Council when introducing Bills in the Assembly.
57. Therefore the question is not whether or not in view of Article 59 (1) the three Bills
or any one of them could be moved by a member but whether they could be moved
in the Assembly at all. To be able to determine that question would have required us
to delve into the provisions of the Bills in great detail. Since we have elsewhere in this
judgment found that the Bills are still pending before the Assembly and fortunately
that is the view of all the parties to the reference, we deem it wise not to make such an
investigation as to whether the Bills are within the ambit of Article 59 (1) or not. The
proper course to take, we think, is to leave it for whoever is aggrieved with any of the
Bills, in the context of Article 59, when they are taken on again in the Assembly, to
raise the matter in the Assembly.
58. We will, however, make some general observations on the submissions of the parties
regarding the provisions of Article 59. In their submission on issue 4 the Applicants
submitted that under Article 59 which provides for Private Member’s Bills, there is
no restriction on introduction of Bills based on policy orientation and that apart from
Bills that impose a charge on the fund of the Community or issue or withdrawal from
any fund of the Community or the remission of any debt due to the Community, a
member of the Assembly may introduce any Bill. With great respect we do not share
that view.
59. We have already stated that the proviso to Article 59(1) prohibits the introduction of
any motion in the Assembly which does not relate to the functions of the Community
or does not relate to a matter with respect to which an Act of the Community can be
enacted. We have also stated that the prohibition applies to both the Council and any
member.
60. The respondent’s contention in paragraph 9 of the Response was not confined simply
to policy oriented Bills but it went on to describe them as “those that have implications
on the Partner States sovereign interests.” What it means is that the competence of
the Community is restricted to matters which are within its jurisdiction. Any matter
which is still under the exclusive sovereignty of the Partner States is beyond the
legislative competency of the Community. The Assembly is a creature of the Treaty
like the other Organs of the Community and such an Organ can only have competence
on matters conferred upon it by the Treaty.
61. The Assembly has no power to legislate on matters on which the Partner States have not
surrendered sovereignty. Issue 7 is whether or not the decision taken by the Council
at its 10th Meeting held on 4 to 8 August 2005 on the East African Community Trade
Negotiations Bill is lawful and in accordance with the provisions of the Treaty. We
have already held that the Bill was not withdrawn from the Assembly.
All that the Council did was to seek a stay of the debate while a study on the
development of trade legislation is being undertaken and concluded. We therefore
15
find that the decision of the Council in this respect is within its powers under Article
14 of the Treaty and no fault may be ascribed thereto.
62. We would like, while commending all counsel who appeared and addressed us in this
case, especially to commend the very useful and helpful submissions addressed to us
by Counsel for the amicus curae who very ably and conscientiously assisted the Court
without any attempt to side with any other party in the reference. The Court, as a
friend of the amicus curiae, was guided accordingly. On costs, Professor Ssempebwa
urged the Court to what orders to make in the event his clients’ Application succeeds.
63. He indicated that the applicants are content with an order that their disbursements
be paid by the respondent and would not insist on an order for full costs in their
favour. That is because the applicants see their application being for the general
public good and interest in the East African Region and any litigation of this kind
should be encouraged especially by the Community which should show the way by
indemnifying these applicants on their disbursement and any future litigants against
costs occasioned by such litigation. The applicants, as we can see it, have succeeded
in almost all their prayers Though Mr. Kaahwa had urged that costs should follow the
event, we find Professor Ssempebwa’s submission acceptable to us.
64. We therefore award costs of the application to the applicants and leave them to
restrict their bill of costs and for the taxing officer to limit the taxation thereof to
those disbursements.
****
East African Court of Justice
Reference No. 1 of 2006
Prof. Peter Anyang’ Nyong’o , Abraham Kibet Chepkonga, Fidelis Mueke Nguli,
Hon. Joseph Kamotho, Mumbi Ngaru, George Nyamweya, Hon. John Mumyes, Dr.
Paul Saoke, Hon. Gilbert Ochieng Mbeo, Yvonne Khamati, Hon. Rose Waruhiu
And
Attorney General Of Kenya , Clerk of The East Africa Legislative Assembly,

Respondent Secretary General Of The East African Community And Abdirahin
Haitha Abdi, Sarah Godana Talaso, Christopher Nakuleu
And
Abdirahim Haitha Abdi, Sarah Godana Talaso, Christopher Nakuleu, Rueben

Onserio Oyondi, Safina Kwekwe Tsungu, Catherine Ngima Kimura, Clarkson
Otieno Karan, Augustine Chemonges Lotodo, Gervase Buluma Kafwa Akhaabi,
Hon. Uhuru Kenyatta, Hon. William K.S. Ruto & Hon. Billow Kerrow- Interveners
Moijo M. ole Keiwua P, Joseph N. Mulenga VP, Augustino S. L. Ramadhani J, Kasanga

Mulwa J, Harold R. Nsekela J
March 30, 2007
Doctrine of estoppel – Election of the East African Legislative Assembly members -

Electoral College - Interveners - Uniformity in treaty application - Whether the
reference disclosed acause of action within the meaning of Article 30 of the Treaty-
whether an election was undertaken within the meaning of Article 50 of the Treaty
– Whether the Kenya’s Election of Members of the Assembly Rules 2001 complied with
the EAC Treaty
Articles: 6, 30, 50 of the Treaty for the Establishment of the East African Community.-
The Treaty for the Establishment of the East Africa Community,(Election of Members
of the Assembly) Rules 200, Kenya, The Vienna Convention on the Law of Treaties,
1969
In 2001, the Kenya National Assembly, pursuant to Article 50 of the Treaty,

determined its own procedure for election of the nine members of the East African
Legislative Assembly embodying the principle of proportional representation.
On 26th October 2006, the National Assembly, acting through its House Business
Committee, in accordance with its Standing Orders and the election rules, went
through a process of electing nine members. The claimants’ averred that the whole
process of nomination and election adopted by the National Assembly of Kenya
was incurably and fatally flawed in substance, law and procedure and contravened
Article 50 of the EAC Treaty in so far as no election was held nor debate allowed in
Parliament on the matter. They sought an interpretation of Article 50 of the Treaty
and other orders.
Prof. Nyongo and others v AG Kenya and others
17
Held:
1. The Kenya National Assembly Rules which do not allow election directly by citizens or
residents of Kenya or their elected representatives are null and void for and contrary
to the letter and spirit of the Treaty.
2. Article 50 of the Treaty constitutes the National Assembly of each Partner State into
an electoral college for electing the Partner State’s nine representatives to the East
African Legislative Assembly. The National Assembly of Kenya did not undertake or
carry out an election within the meaning of Article 50 of the Treaty as the election
rules infringed Article 50. Thus, an interim injunction was granted restraining the 3rd
and 4th respondents from recognizing the nine nominees as duly elected members of
the Assembly until disposal of the reference.
3. The doctrine of estoppel cannot be raised against the operation of statute or invoked
to prevent an inquiry into an alleged infringement of the Treaty.
Cases cited:
Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse
Administratie der Belastingen, [1963] ECR 1
Amminstrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629
Auto Garage v Motokov, (No.3) (1971) EA 514
Flaminio Costa v ENEL [1964] ECR 585
Indira Sawhney v Union of India, JT (1999) (9) SC 557: (2000) 1 SCC 168
Ismail Serugo v Kampala City Council & Attorney General; Constitutional Appeal
No.2/98)
Jaramogi Oginga Odinga vZachariah R. Chesoni & Attorney General, High Court of
Kenya, Miscellanous Application No.602
of 1992
Maritime Electric Co. Ltd v General Dairies Ltd., (1937) 1 All ER 748
R v Secretary of State for Transport, ex p. Factortame Ltd. (No.2) [1991] 1 A.C. 603
Southend-on-Sea Corporation v Hodgson (Wickford) Ltd., (1961) 2 All ER 46
St. Aubyn (LM) v. A.G. (1951) 2 All ER 473
T. Tarmal Industries v Commissioner of Customs and Excise (1968) EA 471
Judgment
1. This is a reference under Article 30 of the Treaty for the Establishment of the East
African Community (the Treaty), in which the above named claimants seek to invoke
this Court’s jurisdiction under Article 27 of the Treaty. The contend that the process
in which the above named 1st 2nd and 3rd interveners were deemed to be elected as
Kenya’s nine members of the East African Legislative Assembly (the Assembly), and
the rules made by the Kenya National Assembly and invoked for effecting the said
process infringe the provisions of Article 50 of the Treaty. They make diverse prayers,
but we need refer to only the pertinent ones with which this judgment is concerned
and which we would paraphrase as follows,
1) That this Court interprets and applies Article 50 of the Treaty to the said process
18
and rules and declares them to be void;
2) That costs of the reference be awarded to the claimants.
We consider the rest of the prayers are not maintainable under Article 30.
2. Background Under Article 2 of the Treaty, the contracting parties, namely the United
Republic of Tanzania, the Republic of Kenya and the Republic of Uganda, (the Partner
States) established among themselves an East African Community (the Community)
and under Article 9 established diverse organs and institutions of the Community.
One of the eight organs established under the Treaty is the East African Legislative
Assembly (the Assembly), which is the legislative organ of the Community. It consists
of twenty ¬seven elected members and five ex officio members. Article 50 of the Treaty
provides that the National Assembly of each Partner State shall elect nine members
of the Assembly in accordance with such procedure as it may determine. The Article
also stipulates that the elected members shall, as much as feasible, be representative
of specified groups, and sets out the qualifications for election.
3. When the first Assembly was due to be constituted in 2001, the National Assembly of
Kenya, “in exercise of the powers conferred by Article 50(1) of the Treaty” made The
Treaty for the Establishment of the East African Community (Election of Members
of the Assembly) Rules 2001” (the election rules). The first nine members of the
Assembly, whose term expired on 29th November 2006 were elected under those
rules.
4. On 25th and 26th October 2006, pursuant to the election rules, the House Business
Committee of the National Assembly deliberated upon lists of names presented to it
as persons that were nominated by the three parliamentary political parties entitled
to nominate candidates for election to the Assembly. The parties are the Kenya
African National Union (KANU), the Forum for the Restoration of Democracy –
People (FORD – P), and the National Rainbow Coalition (NARC). All together,
five lists were presented to the Committee. Two lists, of three nominees each, were
from KANU; one list of one nominee only, was from FORD – P. Each of the other
two lists contained five nominees of NARC. One was submitted by the party leader
through the Clerk to the National Assembly as provided by the election rules. The
other was presented to the Committee, in its afternoon session on 25th October, by
the Government Chief Whip.
5. The Committee unanimously approved the only nomination from FORD – P. In
the course of the deliberations, KANU withdrew one of its lists and the Committee
approved, also unanimously, the three nominees on the remaining list. Finally, with
regard to the nominations from NARC, the Committee considered the two lists
and then, according to its minutes, “resolved to consider the list submitted by the
Government Chief Whip for purposes of nomination…” Although it is not expressly
stated in the minutes, and no reasons therefor were recorded, the Committee thereby
impliedly rejected the nominees on the list submitted by the party leader of NARC,
except for one Gervase Buluma Kafwa Akhaabi who was on both lists.
6. On 26th October 2006, the Committee, after amending the previously approved list
of KANU nominees, approved : – Tsungu Safina Kwekwe, Kimura Catherine Ngima,
Karan Clarkson Otieno, Lotodo Augustine Chemonges, Akhaabi Gervase, Bonaya
Sarah Talaso, Nakuleu Christopher, Abdi Abdirahin Haither, and Reuben Onserio
19
Oyondi. As “duly nominated to serve” in the Assembly and “further resolved that the
list be tabled before the House” in accordance with the Election Rules.
7. The list was accordingly tabled in the National Assembly on that day in a Ministerial
Statement by the Vice President of the Republic of Kenya, as Leader of Government
Business in the National Assembly and Chairman of the House Business Committee.
Thereafter the names were remitted to the 3rd Respondent as members of the
Assembly elected by the National Assembly of Kenya.
8. On 9th November 2006, nearly three weeks before the 2nd Assembly was due
to commence, the claimants filed the reference in this Court with an ex parte
interlocutory application for an interim injunction to prevent the said nine persons
from taking office as members of the Assembly until determination of the reference.
9. By order of the Court the interlocutory application was heard inter partes on 24th
and 25th November 2006. The Court delivered its ruling on the application and on
two objections raised therein on 27th November 2006, in which inter alia, it granted
the interim injunction restraining the 3 and 4 respondents from recognizing the nine
nominees as duly elected members of the Assembly until disposal of the reference.

Parties to the Reference
10. All the claimants are resident in Kenya. In the reference, the and 2 claimants are
stated to be suing as officials of the Orange Democratic Movement (ODM) and
the 4 and 5 claimants are stated to be suing as officials of the Liberal Democratic
Party (LDP). The 3, 6 and 7 claimants are stated to be suing as officials of NARC,
Democratic Party (DP) and Forum for Restoration of Democracy in Kenya (FORD –
K) respectively. But despite highlighting the stated official capacities in the pleading,
nothing significant turned on them during the trial and therefore, in this judgment,
we consider the said claimants in the same individual capacities as the 8, 9, 10 and 11
claimants.
It should be mentioned, however, that the 3, 9, 10 and 11 claimants were the NARC
nominees on the list submitted by the party leader, which was inexplicably rejected
by the House Business Committee.
11. Six respondents were initially cited in the reference. At the hearing of the aforesaid
interlocutory application the 2, 5,and 6 respondents objected to their being joined to
the case, and the Court upheld the objection in its ruling delivered on 27th November
2006, on the ground that the only matters whose legality the Court had to determine
were those done by Kenya as a Partner State through its National Assembly. They
were struck out, leaving the three respondents named above.
12. Following the interim injunction, which took immediate effect, the nine affected
nominees and the KANU party filed separate applications under Article 40 of the
Treaty and r.35 of the Court Rules, for leave to intervene in the reference. By a
consolidated consent order dated 17th January 2007, leave to intervene limited to
supporting the respective cases of the claimants or the respondents was granted.
The 1st interveners are the three KANU nominees, the 2nd is the nominee of FORD
– P and the 3rd interveners are the five persons approved by the House Business
Committee as the NARC nominees. The 4th interveners are officials of KANU party.
20
Pleadings and Issues
13. There are numerous averments in the reference, many of which are unnecessary,
notwithstanding counsel’s explanation that their purpose is to show the full context
of the claimants’ case. With due respect to learned counsel, we are constrained to
observe that much of the “over pleading” has led to some degree of confusion in
regard to the jurisdiction of this Court and the claimants’ cause of action.
Be that as it may, in our view, the claimants’ core pleading that leads to the prayers
we referred to at the beginning of this judgment is captured in two paragraphs, which
read thus –
“29 It is the contention of the claimants that the whole process of nomination and
election adopted by the National Assembly of Kenya was incurably and fatally flawed
in substance, law and procedure and contravenes Article 50 of the East African
Community Treaty in so far as no election was held nor debate allowed in Parliament
on the matter. 30. The claimants also contend that any such rules that may have been
invoked by the Kenya National Assembly which do not allow election directly by
citizens or residents of Kenya or their elected representatives is null and void for
being contrary to the letter and spirit of the Treaty.”
14. In a nutshell, the response of the 1st respondent is premised on the following four
propositions as basic pleas, namely, that –
»» In 2001, the Kenya National Assembly, pursuant to Article 50 of the Treaty,
determined its own procedure for election of the nine members of the Assembly in
form of the election rules, which embody the democratic principle of proportional
representation.
»» In October 2006, the National Assembly, acting through its House Business
Committee, in accordance with its Standing Orders and the election rules, went
through the process of electing the nine members to the 2nd Assembly. Neither
the election rules nor the process of electing the nine members constitute an
infringement of the Treaty or are otherwise unlawful.
»» The reference does not disclose a cause of action.
15. The 3 and 4 respondents plead jointly that no cause of action is disclosed against them
as they were not privy to the activities of the Kenya National Assembly about which
the reference complains. In the alternative they plead that the cause of action, if any,
ceased when they obeyed the interim injunction, which had been the purpose for
their being made parties in the case.
16. Out of these pleadings, the Court framed the following three broad issues –
1) Have the complainants disclosed any cause of action within the meaning of Article
30 of the Treaty?
2) Was an election undertaken within the meaning of Article 50 of the Treaty?
3) Do the Kenya Election Rules i.e. The Treaty for the Establishment of the East
African Community (Election of Members of the Assembly) Rules 2001, comply
with Article 50 of the Treaty?
Evidence
17. The main facts relied on by all the parties, most of which are outlined in the background
section of this judgment, are not in controversy. Only one witness, Yvonne Khamati,
21
the 10th Claimant, gave oral evidence and was cross examined at length by counsel
for all the parties. We hasten to observe, however, that the lengthy questioning of the
witness appeared to be more for eliciting from her some desired evidence than for
challenging the veracity of her testimony. Even the uncommon mode of adducing
evidence of a speech made by Hon. Norman Nyagah, the Government Chief Whip,
through her producing a DVD recording of the speech, for the Court to view and
hear, was not challenged. The rest of the evidence was adduced by affidavits.
18. At the scheduling conference, it was intimated that the 1st respondent would object
to the Hansard copies annexed to the reference being used in evidence. This appears
to have prompted the claimants to adduce affidavits from Members of Parliament
who participated in the proceedings reported in the said Hansard copies. During the
trial, however, the course of objecting to the use of Hansard was not pursued, and
counsel for all the parties, including the respondent, referred to the copies annexed to
their respective pleadings without objection.
19. In view of our finding that the evidence material to the issues for determination is not
contentious, it is unnecessary to discuss it in any detail. Where necessary, we shall
consider the evidence that is not reflected in the background section of the judgment,
as we discuss the framed issues.
20. The Advocates for the claimants, the 1st respondent and the 1st interveners filed
written submissions. In addition, the respective counsel for all the parties as well as
for the amicus curiae made oral submissions at the hearing.
Applicable principles
21. The Treaty describes the role and jurisdiction of this Court in two distinct but clearly
related provisions. In Article 23, the Treaty provides –
“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.”
It then provides thus in Article 27(1)-“The Court shall initially have jurisdiction over
the interpretation and application of this Treaty.”
22. The Treaty, being an international treaty among three sovereign states, is subject
to the international law on interpretation of treaties, the main one being “The
Vienna Convention on the Law of Treaties”. The three Partner States acceded to the
Convention on different dates; (Uganda on 24 June 1988, Kenya on 9 November 1988
and Tanzania on 7 April 1993). The Articles of the Convention that are of particular
relevance to this reference are Article 26 that embodies the principle of pacta sunt
servanda, Article 27 that prohibits a party to a treaty from invoking its internal law as
justification for not observing or failing to perform the treaty and Article 31, which
sets out the general rule of interpretation of treaties. Article 31 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.
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 the parties in
connection with the conclusion of the treaty;
22
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.
There shall be taken into account:
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 the relations between the
parties.
4. “A special meaning shall be given to a term if it is established that the parties so
intended.”
23. Learned counsel for the claimants urged that in addition to seeking guidance from
the Vienna Convention in interpreting the Treaty, the Court should, in respect of
Article 50 of the Treaty, apply what he referred to as the principle of equivalence,
which ensures that in the interpretation and application of rights and obligations
created under a treaty there is equivalence in the states that are bound by the treaty.
24. In other words, treaty provisions must be uniformly interpreted and applied in the
states that are parties to the treaty. For the 1st respondent on the other hand, the
Court was urged to exercise its jurisdiction with care bearing in mind the historical
perspective of the Treaty with particular reference to the recitals in its preamble in
which the Partner States recall the causes of the collapse of the former East African
Community in 1977 and in which they resolve to act in concert to strengthen their
cooperation adhering to fundamental and operational principles set out in the Treaty.
25. In apparent support of this submission learned counsel for the 3rd interveners
stressed the fundamental principle in international law of sovereign equality of states,
under which any matter over which a state does not expressly relinquish sovereignty,
remains within its sovereignty. A state cannot lose sovereignty over any matter by
implication of international law.
Submissions on Issue No.1

26. The claimants’ submission on the first framed issue is that the averments in the
reference show a cause of action within the meaning of Article 30 of the Treaty.
They argue that the claimants are competent to make the reference since they are
legal and natural persons resident in East Africa. The reference and the supporting
documentary evidence, shows that the contentious nominations were made pursuant
to Article 50 of the Treaty as were the election rules under which the nominations
were done. The election rules and the process of the nominations and approval of
the nominees as members of the Assembly are “regulations, decision and action” of
a Partner State whose legality is contestable under Article 30. In the reference, the
claimants ask the Court to interpret Article 50 relative to the said process and rules
and to determine if the process and the rules infringe the Article. They contend that
this is therefore, a justiciable cause of action. They also reiterate that this Court has
jurisdiction to determine the reference and to grant the prayers made therein.
27. On the other hand the 1st respondent submits that the claimants have not disclosed
23
any cause of action under Article 30 of the Treaty. In order to establish a cause of
action, a litigant must have locus standi. The litigant must have sufficient interest in
the subject matter upon which a court is to adjudicate. Secondly, the litigant must
be seeking a remedy in respect of a legal right, which has been infringed or violated.
28. According to the 1st respondent there are two view points of the issue of locus standi
in the instant reference. First, from a strict perspective, since the subject matter of
the reference, namely whether the election of Kenya’s members of the Assembly
was undemocratic and unlawful, is a matter of public interest, the only person that
has locus standi as the protector of public interest, is the Attorney General of the
Republic of Kenya. Secondly, from a broader perspective, the, 4 and 7 claimants,
being members of the National Assembly, may claim to have locus standi on the
ground that they have personal interest to ensure that the National Assembly elects
strictly in accordance with Article 50. That approach, however, should be avoided as
it would make a mockery of democracy to allow them to refer to the Court an issue
that they lost to the majority in a democratic debate in the House.
29. The 1st respondent also maintains that the claimants failed to show that they have
a right conferred by the Treaty, which was contravened. Article 30 does not confer
any right on any of the claimants. It is only a procedural provision for enforcing
rights conferred under other provisions of the Treaty. If Article 30 is interpreted
to confer a right on every resident of the Partner State, the Court would be turned
into an institution of resolving philosophical discussion and speculation and cease
to be a court of law. Since under Articles 34 and 52 the Treaty vests interpretation
jurisdiction in the national courts also, the substance of the reference should be dealt
with by the High Court of Kenya under Article 52. If this Court rules on the legality of
the contentious election it would be usurping the power of the High Court of Kenya.
30. In support of the foregoing submissions, learned counsel for the 3rd interveners, also
contended that the claimants do not have a cause of action maintainable in this Court,
which is an international court. Their grievance raises the question whether the 3rd
interveners were elected to the Assembly. The Treaty expressly provides in Article 52
that when that question arises, it shall be determined by the relevant institution of
the Partner State. The claimants did not seek remedy from the High Court or other
institution of the Republic of Kenya. Under the principles of international law, they
cannot access this Court before exhausting the local remedy provided by the Treaty
itself.
31. Learned counsel for the 3rd and 4th respondents, stressed that both under the pleadings
and in the evidence no claim was made against either of the two respondents. They
were not alleged to be persons whose activities gave rise to the reference. They were not
shown to have infringed a right conferred on the claimants by the Treaty. No nexus
was established linking the 3rd and 4th respondents to the activities complained of
in the reference. The claimants did not disclose, let alone prove, any cause of action
entitling them to a claim and an award against the two respondents. Although, in the
interlocutory application for injunction they were properly joined, they ought to have
been discharged after compliance with the injunction order.
32. Further, the 3 and 4 respondents contend that they cannot be party to the reference
because they are neither a Partner State nor an institution of the Community whose
24
acts or regulations are referred to the Court under Article 30.
Finding on Issue No. 1

33. From the submissions, we discern the following five grounds upon which the
contention of nondisclosure of a cause of action is based, i.e that-
»» the claimants failed to show the essential elements of a cause of action, namely,
that their rights or interests were violated or infringed upon;
»» Article 30 does not create any right; it creates a forum for adjudication of rights
vested by other provisions of the Treaty;
»» the substantial question raised in the reference, whether the 3rd interveners are
elected members of the Assembly, is not within this Court’s jurisdiction;
»» the claimants have not exhausted the local remedy provided by the Treaty; and
»» in the case of the 3rd and 4th respondents, it is not shown that they are liable for
the matters, which are subject of complaint in the reference.
34. A cause of action is a set of facts or circumstances that in law give rise to a right to sue
or to take out an action in court for redress or remedy. In Auto Garage vs. Motokov,
(No.3) (1971) EA 514, a decision of the Court of Appeal for East Africa, Spry V.P.,
described a common law cause of action at p.519 D thus –
“if a plaint shows that the plaintiff enjoyed a right, that the right has been violated
and that the defendant is liable, then, in my opinion, a cause of action has been
disclosed and any omission or defect may be amended. If on the other hand, any of
those essentials is missing, no cause of action has been shown and no amendment is
permissible.”
35. That description sets out the parameters of actions in tort and suits for breach of
statutory duty or breach of contract. However, a cause of action created by statute or
other legislation does not necessarily fall within the same parameters. Its parameters
are defined by the statute or legislation which creates it.
36. This reference is not an action seeking remedy for violation of the claimants’ common
law rights. It is an action brought for enforcement of provisions of the Treaty through
a procedure prescribed by the Treaty. The Treaty provides for a number of actions
that may be brought to this Court for adjudication. Articles 28, 29 and 30 virtually
create special causes of action, which different parties may refer to this Court for
adjudication. Under Article 28(1) a Partner State may refer to the Court, the failure
to fulfill a Treaty obligation or the infringement of a Treaty provision by another
Partner State or by an organ or institution of the Community. Under Article 28(2) a
Partner State my also make a reference to this Court to determine the legality of any
Act, regulation, directive, decision or action on the ground that it is ultra vires or
unlawful or an infringement of the Treaty or any rule of law relating to its application
or amounts to a misuse or abuse of power. Under Article 29 the Secretary General
may also, subject to different parameters, refer to the Court failure to fulfill a Treaty
obligation, or an infringement of a provision of the Treaty, by a Partner State.
37. Article 30 provides –
“Subject to the provisions of Article 27 of this Treaty, any person 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
25
the grounds that such Act, regulation, directive, decision or action is unlawful or is an
infringement of the provisions of this Treaty.”
38. It is important to note that none of the provisions in the three Articles requires
directly or by implication the claimant to show a right or interest that was infringed
and/or damage that was suffered as a consequence of the matter complained of in the
reference. We are not persuaded that there is any legal basis on which this Court can
import or imply such requirement into Article 30.
39. In the respondent’s written submissions, and in the supplementary oral submissions
by the learned Deputy Solicitor General of Kenya a number of authorities were cited
in support of the contentions that the claimants had no locus standi and/or had not
disclosed a cause of action. Unfortunately no copies were availed to the Court despite
undertaking to do so. One that we are able to comment on is the decision of the
High Court of Kenya in Jaramogi Oginga Odinga vs. Zachariah R. Chesoni & Attorney
General, Misc.Appl. No.602 of 1992, a copy of which was availed by counsel for the
6th respondent at the hearing of the interlocutory application. In that case, the High
Court of Kenya held that section 60 of the Constitution of the Republic of Kenya does
not confer any right to a litigant nor create a cause of action. By way of analogy, it is
argued that Article 30 ought to be interpreted in the same way. We do not need to
discuss the decision in any detail. We respectfully agree with that interpretation. But
we hasten to point out that the provisions of section 60 of the Constitution of Kenya
are not similar or comparable to the provisions of Article 30 of the Treaty. The section
only vests jurisdiction, albeit unlimited jurisdiction, in the High Court of Kenya. The
court held –
“The court’s unlimited powers ought to be and are used with judicial restraint and
only in situations where ends of justice may be defeated by failing to exercise them.
To use these inherent or residual powers, the court must be satisfied on grounds
placed before it that the powers should indeed be used. That, in our opinion, is what
section 60(1) provides for. It does not create causes of action or courses to follow in
those actions.”
40. In Article 30, however, the Treaty confers on any person resident in a Partner State
the right to refer the specified matters to this Court for adjudication and as we have
just said, by the same provision it creates a cause of action.
41. Section 60 of the Kenya Constitution, is comparable to provisions of the Treaty that
only vest jurisdiction without creating causes of action, like Articles 27, 31 and 32,
which respectively vest in this Court jurisdiction to interpret the Treaty, to hear
and determine disputes between the Community and its employees and to hear and
determine arbitration disputes in specified circumstances. We find a more plausible
comparison with Article 30 of the Treaty to be in Article 137 of the Constitution of
the Republic of Uganda, which in clause (1) vests in the Constitutional Court the
jurisdiction to interpret the Constitution and in clause (3) confers on any person the
right to petition that court on an allegation that any Act of Parliament or other law,
or any act or omission by any person or authority is inconsistent with, or contravenes
the Constitution, for a declaration to that effect. The Supreme Court of Uganda has
in several decisions held that the Article thereby creates a cause of action. see Ismail
Serugo vs. Kampala City Council & Attorney General; Constitutional Appeal No.2/9.
26
42. Turning back to the claim in this reference, we note that the claimants make no
secret of the fact that they were prompted to bring this reference by what the claim
to be unlawful substitution of the 3 interveners for the 3rd , 9th, 10th and 11th
complainants as the NARC nominees and the resultant deeming of the former as
elected members of the Assembly. Those circumstances per se raise the question
whether the 3rd interveners are elected members of the Assembly and the question is
squarely within the parameters of Article 52(1), which provides – “Any question that
may arise whether any person is an elected member of the Assembly or whether any
seat on the Assembly is vacant shall be determined by the institution of the Partner
State that determines questions of the election of members of the National Assembly
responsible for the election in question.”
43. Needless to say, this provision also creates a cause of action under the Treaty.
However, it is the one cause of action under the Treaty over which this Court has
no jurisdiction. Obviously, that is why the 1st respondent persistently seeks to strait
jacket this reference into the parameters of Article 52(1), to cushion the initial
argument that this Court has no jurisdiction over the reference, and additionally to
contend that no cause of action triable by this Court is disclosed.
44. We should mention at this juncture that the same argument is reiterated in
submissions on the second framed issue, presumably in an effort to show that it is a
non¬issue. There, it is argued that the fact of the election is not disputable, and that
the substantive dispute arises from the two lists of nominees submitted by NARC’s
party leader and party whip, respectively. Four of the nominees on the party leader’s
list who were not elected, claim that they were the rightful nominees who should have
been elected instead of the 3rd interveners who were on the party whip’s list. That
dispute is not within the ambit of Article 30. Basically, it is a dispute on who should
have submitted the NARC party nominees, which dispute should have been solved
through the internal party mechanism. Outside the party, it is, at most, a dispute as
to whether the 3rd interveners were lawfully elected and should have been referred to
the High Court of Kenya under Article 52.
45. But, under whatever context, the arguments turn round to one central theme, namely
that the Court ought not to determine this reference. In our view, the subtle variation
introduced in submissions by learned counsel for the 3rd interveners that the Court
had jurisdiction to grant the interim injunction and to hear the reference but has no
jurisdiction to grant the remedies prayed for, makes no material difference. We shall
dispose of the said theme here and will not return to it under any other framed issue.
46. We agree that if the only subject matter of the reference were those circumstances
surrounding the substitution of the 3rd interveners for the said four claimants, this
Court would have no jurisdiction over the reference. In paragraphs 29 and 30 of the
reference, however, the claimants have referred to the Court two other issues, which
we consider to be the core and material pleadings for purposes of the reference. It is
those pleadings that disclose the special causes of action, which evoke this Court’s
jurisdiction under the Treaty. And it is only those pleadings that will be subject of
adjudication in this reference. While it is apparent that the reference of the two issues
is an after thought, in our considered opinion it is not tantamount to abuse of court
process as submitted by the 1st respondent.
27
47. In the ruling delivered on 27th November 2006, we held that the Court has jurisdiction
to hear and determine the reference. We find no reason to review that decision.
Whatever we say on the matter hereafter is to provide the details of our reasons for
the decision as we undertook to do in the said ruling.
48. Under Article 33(2), the Treaty obliquely envisages interpretation of Treaty provisions
by national courts. However, reading the pertinent provision with Article 34 leaves
no doubt about the primacy if not supremacy of this Court’s jurisdiction over the
interpretation of provisions of the Treaty. For clarity, it is useful to reproduce here,
the two Articles in full. Article 33 provides –
1. Except where jurisdiction is conferred on the Court by the Treaty, disputes in
which the Community is a party shall not on that ground alone, be excluded from
the jurisdiction of the national courts of the Partner States.
2. Decisions of the Court on the interpretation and application of this Treaty shall
have precedence over decisions of the national courts on a similar matter.”
And Article 34 provides –
“When a question is raised before any court or tribunal of a Partner State concerning
the interpretation or application of this Treaty or the validity of the regulations,
directives, decisions or actions of the Community, that court or tribunal shall, if it
considers that a ruling on the question is necessary to enable it to give judgment,
request the Court to give a preliminary ruling on the question.”
49. The purpose of these provisions is obviously to ensure uniform interpretation and
avoid possible conflicting decisions and uncertainty in the interpretation of the same
provisions of the Treaty.
50. Article 33(2) appears to envisage that in the course of determining a case before
it, a national court may interpret and apply a Treaty provision. Such envisaged
interpretation, however, can only be incidental. The Article neither provides for nor
envisages a litigant directly referring a question as to the interpretation of a Treaty
provision to a national court. Nor is there any other provision directly conferring on
the national courts jurisdiction to interpret the Treaty. Article 30 on the other hand,
confers on a litigant resident in any Partner State the right of direct access to the
Court for determination of the issues set out therein. We therefore, do not agree with
the notion that before bringing a reference under Article 30, a litigant has to “exhaust
the local remedy”.In our view there is no local remedy to exhaust.
51. We would express reservations about the supplementary or alternative notion that a
litigant who fails to secure relief from the national courts under Article 52 would have
recourse to this Court to seek the same relief.
52. Lastly, the 3rd and 4th respondents were not joined for being privy to the actions of
the Republic of Kenya or for any wrong they did. They were joined, as learned counsel
rightly concedes, because of the relief sought by the claimants, namely the prayer that
they be restrained in the terms set out not only in the interlocutory application but
also in the reference. The submission would have made more sense if it came prior
to the hearing of the reference. Accordingly we answer issue no.1 in the affirmative.
28
53. The main thrust of the claimants’ submissions on the second and third issues is that
no election, within the meaning of Article 50 of the Treaty, was undertaken and that
the election rules do not provide for election. The process provided for by the election
rules and what actually transpired amount to the antithesis of an election.
54. The claimants maintain that the expression “shall elect” as used in Article 50 can
only mean “shall choose by vote”. That is the ordinary meaning as defined in several
dictionaries, and as it is understood and practiced not only in all three Partner States,
but also in international democratic practice worldwide. Under the Constitution and
electoral laws of Kenya that govern the elections of the President, and of the Speaker,
Deputy Speaker and Members of Parliament, election means election through voting.
The provision in the Treaty that “the National Assembly shall elect” therefore, does
not import a concept that is unknown to or that differs from that envisaged and
practiced by the Republic of Kenya.
55. The affidavit evidence shows that three parliamentary political parties, namely
NARC, KANU and FORD¬K, submitted to the House Business Committee names
of persons nominated for election as members of the Assembly. On 26th October
2006, the Chairman of the House Business Committee simply tabled in the National
Assembly a list of names of nine persons stated to be nominated by the said political
parties. That list did not include the names of the 3rd, 9th , 10th and 11th claimants
who had been validly nominated as NARC nominees because at the initiative of Hon.
Norman Nyagah, the Government Chief Whip, the House Business Committee had
replaced them with the names of the 3rd interveners. As stipulated by the election
rules, the nine persons were thereby deemed to be elected by the National Assembly.
56. Significantly, when introducing the nine names to the House, the Vice President,
who is also Leader of Government Business, said, as his predecessor had said on the
equivalent occasion in 2001, that the nine persons were “appointed”. Both leaders
knowing the difference between “elected” and “appointed”, used the latter word
because what had transpired in the House Business Committee was not an election
but an appointment of the nine persons. Besides, this was consistent with what the
said Government Chief Whip said in his speech recorded on the DVD, bragging
immediately prior to the process that only he would name those to be sent to the
Assembly. All that goes to show that what transpired was not an election by the
National Assembly, but was at best “an appointment” by the Government controlled
House Business Committee.
57. The submissions on this issue, for the respondent and the supporting interveners,
may be summarized as follows. The words “election” and “elect” as used in Article 50
do not necessarily connote choosing or selecting by voting. They are not defined in
the Treaty. Black’s Law Dictionary defines “election” as –
“the process of selecting a person to occupy an office (usually a public office)”
58. Furthermore, though under Article 6 of the Treaty the Partner States are committed
to adhere to “democratic principles”, no specific notion of democracy is written into
the Article or the Treaty. Besides, while Article 50 provides for the National Assembly
of each Partner State to elect nine members of the Assembly, it gives no directions
on how the election is to be done, except for the stipulations that the nine must not
29
be elected from members of the National Assembly and that as far 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. This is in
recognition of the fact that each Partner State has its peculiar circumstances to take
into account. The essence of the provision in Article 50 is that “the National Assembly
of each Partner State shall elect … nine members of the Assembly … in accordance
with such procedure as [it] may determine.”
59. Learned counsel for the 1st interveners, supplements this submission with the
argument that the power and discretion of the National Assembly under Article
50(1) is so unfettered that the National Assembly may determine a procedure of
election that excludes itself from actual or physical voting. In exercise of that power
and discretion, the Kenya National Assembly determined its procedure in 2001 by
making the election rules, which must be respected.
60. It is not in dispute that only entitled parliamentary political parties nominated
candidates for election and submitted their names to the House Business Committee.
Being satisfied that they were qualified to be elected and that they complied with the
terms of Article 50, the House Business Committee approved nine of the nominees
on 26th October 2006 and on the same day tabled their names before the National
Assembly. Thereupon, by virtue of the election rules, the nine nominees were deemed
to be elected by the National Assembly. The Speaker confirmed that the process was
conducted in accordance with the election rules. The process is a mode of democratic
election by proportional representation as practiced not only in Kenya but also in
several other democratic countries.
61. The question that the Court should have been appropriately asked to consider is
whether the process conforms to the conditions stipulated in Article 50. However,
the question did not arise since it was neither alleged, let alone proved, that any of the
nine elected persons was not qualified nor that the specified representations, namely
representations of various political parties, shades of opinion, gender and other
special interest groups were not achieved.
62. Learned counsel for the 2nd intervener supplemented the submissions in support of
an affirmative answer to the second framed issue, with the contention that a proper
interpretation of Article 50 is not to consider the meaning of the expression “to elect”
in isolation but as one with the procedure that Article 50 empowers the National
Assembly to determine. For the purpose of Article 50 therefore, an election means the
process determined by the National Assembly as set out in the election rules. If the
Court undertakes the task of giving dictionary meaning to the expressions “to elect”
and “an election” it will be assuming the role of making rules of procedure, which is
the preserve of the National Assembly.
Finding on Issue No.2

63. The first step towards answering the second framed issue is to resolve the conflict of
two basic concepts on the import of Article 50 that underlie these submissions. One
concept is that the Article imposes on each National Assembly the function of electing
nine members of the Assembly from the respective Partner States, with a discretionary
power to determine the procedure it will follow in executing that function. The other
30
concept is that the Article confers on the National Assembly of each Partner State
the responsibility, with unfettered discretion, to determine how the nine members of
the Assembly from the respective Partner States are to be elected. To find out which
of the two concepts reflects the correct object and purpose of Article 50 as intended
by the parties to the Treaty, we have to consider the provisions of the Article in the
context of the Treaty as a whole.
64. However, in view of paragraph 3(b) of Article 31 of the Vienna Convention, it is
necessary to consider first if Kenya’s practice in its application of Article 50 since
2001, establishes any agreement of the parties regarding the interpretation of that
Article. No evidence was adduced on the practice by the other two parties in their
application of Article 50. However, from the differences between the election rules
and the equivalent rules of procedure adopted by the National Assemblies of Tanzania
and Uganda, copies of which were availed to Court in the course of oral submissions
by counsel, it is evident, and we are able to conclude, that no agreement of the parties
regarding interpretation of Article 50, can be inferred from the said practice.On the
surface, the Tanzania rules provide for elaborate elections by the National Assembly,
while the Uganda rules are silent on the issue of election, save that in rule 2 “election”
is defined as “a process of approval of names nominated by political parties and
presented to the House by the Speaker”, and in rules 10 and 11 they provide for the
Speaker to announce to the House the “nominations” of members of the Assembly
and for the publication in the Gazette of the names of the “elected members” as soon
as the Speaker announces them. Clearly, there is glaring lack of uniformity in the
application of Article 50.
65. As we said earlier in this judgment, the Treaty creates eight organs of the Community.
It prescribes the composition of each organ and how its membership is to be
constituted. Memberships of four of the organs, namely, the Summit, the Council,
the Co¬ordination Committee and Sectoral Committees are principally constituted
by specified ex officio members and additional members determined by the Partner
States from time to time. They are all serving officials of the Partner States. The
membership of the Court, the judicial organ of the Community, consists of judges
appointed by the Summit on recommendations of the Partner States. The Secretariat,
the executive organ of the Community is also constituted by appointees. The Secretary
General is appointed by the Summit upon nomination by a Head of State. The Deputy
Secretaries General are appointed by the Summit on recommendation of the Council.
And the Counsel to the Community is appointed on contract.
66. The Assembly is differently constituted. Its composition is prescribed in Article 48.
It is the only organ composed of two categories of membership, namely, 27 elected
and 5 ex officio members. In Article 50, the Treaty prescribes how the first category
of membership is to be constituted, and qualifications of members.
Article 50 is titled – “Election of Members of the Assembly” and the full text reads –
1) The National Assembly of each Partner State shall elect, not from among its
members, nine members of the Assembly, who shall represent as much as is
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
31
may determine.
2) A person shall be qualified to be elected a member of the Assembly by the National
Assembly of a Partner State in accordance with paragraph 1 of this Article if such
a person:
(a) is a citizen of that Partner State,
(b) is qualified to be elected a member of the National Assembly of that Partner
State under its Constitution, (c) is not holding office as a Minister in that
Partner State,
(d) is not an officer in the service of the Community, and
(e) has proven experience or interest in consolidating and furthering the aims and
objectives of the Community.”
67. Clearly, the overriding object and purpose of Article 50 is to prescribe a special mode
of constituting the first category of membership of the Assembly. This is done by
providing in express, unambiguous and mandatory terms that the section of the
Assembly comprising 27 members shall be constituted by members elected severally
by the National Assemblies of the Partner States, each of which is entitled to elect
nine members. We should observe that this is a notable departure from provisions
of Articles 56 and 57 of the 1967 Treaty for East African Cooperation, under which
each Partner State was mandated to “appoint nine” of the “twenty seven appointed
members” of the Legislative Assembly.
68. It is also significant that unlike in respect of the other organs, the Treaty does not
leave it to each Partner State to appoint or nominate for appointment or otherwise
determine the members of the Assembly. In our view, according to the ordinary
meaning of the expression “the National Assembly of each Partner State shall elect
nine members of the Assembly”, the National Assembly of each Partner State is
unconditionally assigned the function of electing nine members of the Assembly.
In other words Article 50 constitutes the National Assembly of each Partner State
into “an electoral college” for electing the Partner State’s nine representatives to
the Assembly. We think that there can be no other purpose of naming the National
Assembly in this regard other than to constitute it into an electoral college.
69. The rest of the provisions of Article 50 do not add to or subtract from that assignment.
They only serve to leave two matters in the National Assembly’s discretion. First,
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
the feasibility of such representation is left to be determined in the discretion of the
National Assembly. Secondly, the National Assembly has the discretion to determine
the procedure it has to follow in carrying out the election.
70. In our considered view, the decision to constitute the National Assembly of each
Partner State into an electoral college was a deliberate step towards establishing a
legislature comprising people’s representatives. The National Assembly, being an
institution of people’s representatives, is next to the people themselves, the second
best forum for electing such representatives. We are therefore not persuaded by
the submission of counsel for the 1st interveners that the discretion of determining
the procedure of electing the representatives includes an option for the National
Assembly to assign the function to any other body. That submission has the effect
32
of extending the discretion beyond what is provided in Article 50. It also offends
the well established principle articulated in the maxim: “Delegata potestas non potest
delegari” (a delegated power cannot be delegated).
71. The next step towards answering the second framed issue is to consider what is
meant by the words “election” and “elect” in the setting they are applied in Article 50
and in the context of the Treaty as a whole. The 1st respondent and the supporting
interveners capitalise on the absence of any definition of those words in the Treaty
and on the fact that the words are capable of bearing meanings other than choosing
by vote. However, neither fact leads to any material consequence. The absence of any
definition of the words in the Treaty is not ground to contend that the parties to the
Treaty attached no meaning to them. The phenomenon of double or even multiple
meanings of words is a common occurrence but does not prevent a court giving
the word interpretation in the context it is used. In International Law and Order by
Prof. Georg Scwarzenberger, (Stevens & Sons, London 1971), under the Chapter on
Treaty Interpretation, the learned author, commenting on Article 31 of the Vienna
Convention on the Law of Treaties, which we reproduced earlier in this judgment,
says at p.121 –
“In accordance with the general rule on interpretation in the Vienna Convention, the
object of treaty interpretation is to give their “ordinary” meaning to the terms of the
treaty in their context and in the light of its object and purpose.
Unfortunately, almost any word has more than one meaning. The word “meaning”
itself has at least sixteen different meanings. Thus if parties are in dispute on any
term of a treaty, each one of them is likely to consider the meaning it attaches to a
particular word as the ordinary meaning in the context and in the light of the object
and purpose of the treaty.”
72. Fortunately, the words that are under consideration do not bear a multiplicity of
meanings. It is common ground that the ordinary meanings of the words “election”
and “to elect” are “choice” and “to choose” respectively; and that in the context of
Article 50 the words relate to the National Assembly choosing or selecting persons
to hold political positions. What is in contention is whether the parties to the Treaty
intended the choice or selection to be done through a process of voting or through
any other process to be determined by each of the three National Assemblies.
73. The phenomenon of multiple meanings of words makes interpretation of documents
a very difficult task; but the task is not insurmountable. Rules of interpretation have
been designed to ease the burden, hence the need to invoke them. Indeed, in the
instant case, the contention revolves more on the intention of the parties to the Treaty
than on the meaning of the words. Two trite rules of international law, which emanate
from the principle of pacta sunt servanda, are of particular relevance here. One is
that treaty provisions are presumed to have meaning and must not be construed as
void for uncertainty, in the way contracts between private persons may be construed
at municipal law. The other is that the parties to a treaty cannot be taken to have
intended an absurdity. (See Manual of Public International Law Edited by Prof. Max
Sorensen, Uganda Publishing House Ltd. 1968; para. 4.30 and 4.31).
74. In our view, it would lead to unnecessary uncertainty, if not to absurdity, if Article
50 were construed to mean that the parties to the Treaty intended to attach no
33
meaning to the words “election” and “to elect” used in Article 50, leaving it to each
National Assembly to adopt its preferred meaning of the words through the rules
of procedure it determines. Counsel for the interveners advanced a theory that the
matter was intentionally left open ended because of differences in the level of political
development of the Partner States, and in support of the theory relied on the inclusion
of the principle of asymmetry among the operational principles of the Community
set out in Article 7 of the Treaty. With due respect to learned counsel, we find no
legal or factual basis for his perception or speculation that at the time of entering
into the Treaty the Partner States were at different levels of political development. To
our understanding, the operational principle of asymmetry he cited in support of his
argument, relates to the acknowledged economic imbalances for whose rectification
the parties have, by appropriate protocol, set a formula and time¬frame. It is not
applicable to any imagined uneven political development of the Partner States.
75. We think that Articles 5 and 6 have a bearing on the subject at hand. By the Treaty,
the Partner States established themselves into the Community, for the achievement
of elaborate objectives set out in Article 5. For purposes of this judgment it suffices
to say that the overall objective is developing and strengthening co¬operation in
specified fields for the mutual benefit of the Partner States; and further establishing
among themselves into several stages of integration up to a Political Federation,
in order to attain inter alia raised standard of living and improved quality of life
for their populations. Article 6 outlines five sets of fundamental principles that the
parties chose to govern their achievement of the Community objectives. Again for
the purpose of this judgment it suffices to highlight only (a) and (d), namely the
principles of –
»» mutual trust, political will and sovereign equality,
»» good governance including adherence to the principles of democracy…..
76. Two other facts are worthy of taking into account. Ordinarily a reference to a
democratic election of persons to political office is understood to mean election by
voting. Secondly, in all three Partner States, the National Assembly has the function
of electing its Speaker and Deputy Speaker. It executes that function by voting in one
form or another.
77. The Constitution of the Republic of Kenya provides in sections 37 and 38 that
the Speaker and the Deputy Speaker, respectively, shall be elected by the National
Assembly. Those provisions are reiterated in the Standing Orders, which then set
out elaborate procedure of conducting the election by ballot. In contrast, Order
154 provides that Members and the Chairman of any select committee shall be
“nominated” by the House Business Committee unless nominated by the House on
setting up the select committee. Under Order 155, the House Business Committee
may “appoint” in place of a member whose membership has ceased or who is absent,
another member to act. In the scenarios under Orders 154 and 155, no voting is
envisaged.
78. In view of all the foregoing, we find it very unlikely that in adopting Article 50, the
parties to the Treaty contemplated, let alone intended, that the National Assembly
would elect the members of the Assembly other than through voting procedure.
Needless to say, an election through voting may be accomplished using such diverse
34
procedures as secret ballot, show of hands or acclamation. The electoral process may
or may not involve such preliminaries as campaigns, primaries and/or nominations.
An election may be contested or uncontested. In our considered view, the bottom line
for compliance with Article 50 is that the decision to elect is a decision of and by the
National Assembly.
79. The evidence before us leads to only one conclusion, namely that the National
Assembly of Kenya did not undertake or carry out an election within the meaning of
Article 50 of the Treaty.

80. On the third issue specifically, the claimants contend that the election rules do not
meet the threshold set by Article 50, and to that extent have no bearing on the Article.
In formulating the election rules, the Kenya National Assembly disregarded the limits
of its discretion under Article 50. This is particularly borne out by the evidence from
the Hansard reports of the debate in the National Assembly in 2001. The evidence
clearly indicates that the rules were adopted notwithstanding that their inconsistency
with Article 50 was articulated by a number of contributors to the debate. In that
connection, during the proceedings of 26th October 2006, in the course of ruling that
the National Assembly was bound by the election rules it adopted against his advice
in 2001, the Speaker observed that the Kenya National Assembly was living a lie with
regard to election of members of the Assembly and urged the House to re¬look at his
rejected draft rules as it had a right and duty to amend inter alia rules that are not in
consonance with the expectations of the public.
81. Learned counsel for the claimants urged that in interpreting the Treaty relative to
the election rules, the Court must bear in mind the principle of equivalence, which
requires that the Treaty be applied uniformly among the Partner States; and the
principle of primacy of Community law in case of conflict with national law.
82. The 1st respondent on the other hand submits that the election rules do comply
with Article 50. Under the Treaty each Partner State has the discretion to choose
any democratic electoral system for the election of the members of the Assembly.
The election rules made by the Kenya National Assembly establish such a democratic
electoral system of proportional representation. They do not infringe Article 50 in
any way and the Court should respect them.
83. The 1st interveners support the submission that the election rules were lawfully made
by the Kenya National Assembly within its discretion under, and in compliance with,
Article 50(1). They submit that in interpreting that Article and applying it to the
election rules, the Court should take the rules as they are, and not consider whether
the rejected drafts were better. The Court cannot question the validity of the rules
on basis of whether they are democratic enough. They were made by the competent
authority, and were adopted in a democratic manner after a detailed and focused
debate. The Court may only determine if in making the rules the National Assembly
complied with its mandate to determine a procedure that caters for the stipulations
under Article 50.
84. In addition it is contended that the claimants are estopped from challenging the
validity of the election rules, which they recognised and relied on up to the conclusion
of the election.
35
Findings on Issue No.3

85. We should at the outset reiterate that the point we have to decide on under this issue
is whether the election rules constitute an infringement of Article 50 of the Treaty.
It is therefore, immaterial that the claimants or any of them may have previously
regarded the election rules as valid or may have done anything or taken any step
in pursuance of their provisions. We say this because it is our firm view that once a
question of infringement of the Treaty is properly referred to this Court under Article
30, the question ceases to be of purely personal interest. This court would be failing in
its duty under Article 23 if it refuses to determine the question on the ground of the
claimant’s previous conduct or belief.
86. Furthermore, it is well settled that the doctrine of estoppel cannot be raised against
the operation of statute. (See Maritime Electric Co. Ltd vs. General Dairies Ltd., (1937)
1 All ER 748; Southend on Sea Corporation vs. Hodgson (Wickford) Ltd., (1961) 2
All ER 46 and T. Tarmal Industries vs. Commissioner of Customs and Excise (1968)
EA471. Similarly in our view, estoppel cannot be invoked to prevent an inquiry into
an alleged infringement of the Treaty. If the rules made in exercise of power conferred
by Article 50 are ultra vires, they cannot be saved on the ground that the claimants
previously regarded them as intra vires.
87. The point of inquiry under this issue is what the rules provide in regard to “election
of the members of the Assembly.”Consequently, the 1st respondent misses the point
when he submits that through the rules the National Assembly adopted a democratic
system of proportional representation. Proportional representation can be effected
through nomination and/or appointment as is the case, under Article 33 of the Kenya
Constitution, for the “nominated members” of the National Assembly. In any case, it
is the Treaty that provides for proportional representation in the Assembly, and which
directs that the representation shall be achieved by election. The critical point is not
whether the rules provide for proportional representation but whether they provide
for election of members of the Assembly on basis of proportional representation as
provided by Article 50.
88. The election rules provide in rule 4, that the National Assembly shall elect the nine
members of the Assembly “according to the proportion of every party in the National
Assembly”. To that extent, there is partial compliance with Article 50. However,
the apparent absence of any provision to cater for gender and other special interest
groups is a significant degree of non¬compliance, notwithstanding the discretion of
the National Assembly in determining the extent and feasibility of the representation.
89. The major deviation from Article 50 is that the election rules do not provide for
the National Assembly to elect the members of the Assembly. Rule 5 provides for
the nomination of candidates by the political parties and sets out the procedure for
submitting nomination papers to the House Business Committee. Rules 6 and 7 then
provide –
“6. The House Business Committee shall consider the nominees of the parties
delivered to it under sub ¬rule (4) of rule 5 and shall ensure that the requirements of
Article 50 of the Treaty are fulfilled.
7. Upon being satisfied that the requirements of rule 6 have been complied with, the
36
House Business Committee shall cause the names of nine nominees of the parties to
be tabled before the National Assembly and such nominees shall be deemed to have
been elected as members of the East African Legislative Assembly in accordance with
Article 50 of the Treaty.”
90. It is not clear if “the requirements of Article 50” mentioned in rule 6 and “the
requirements of rule 6” mentioned in rule 7 are the same or different, thus making the
role of the House Business Committee in the process rather uncertain. What we can
deduce from the rules is that its role is to vet the nominees to ensure that they qualify
to be elected and presumably that they are representative of the groupings specified in
Article 50. Be that as it may, it is plain from the two rules that the nine nominees are
not elected by the House Business Committee, contrary to a spirited effort by counsel
for the 3rd interveners to argue that the House Business Committee is “an electoral
college”. If that were so, it would be unnecessary to stipulate that the nominees are
deemed to be elected by the National Assembly. Indeed the use of the expression
“nominees are deemed to be elected” signifies that the nominees are not elected.
91. The same learned counsel persuasively argued that the word “deem” is a good legal
word in common usage. He asserted: “We deem that which in law ought to have
taken place, to have taken place”.
92. We agree that the word “deemed” is commonly used both in principal and subsidiary
legislation to create what is referred to as legal or statutory fiction. The legislature
uses the word for the purpose of assuming the existence of a fact that in reality does
not exist. In St. Aubyn (LM) vs. A.G. (1951) 2 All ER 473, Lord Radcliffe describes the
various purposes for which the word is used where, at p.498 he says –
“The word “deemed” is used a great deal in modern legislation. Sometimes it is
used to impose for the purpose of a statute an artificial construction of a word or
phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt
a particular construction that might otherwise be uncertain. Sometimes it is used to
give a comprehensive description that includes what is obvious, what is uncertain and
what is, in the ordinary sense, impossible.”
93. It is common ground that the election rules were made “in exercise of the powers
conferred by Article 50(1) of the Treaty”, and obviously for the purpose of
implementing the provisions of the said Article. In rule 7, the legislature used the
word “deemed” in order to create the fiction that upon the names of party nominees
being laid on the table they would in law be elected by the National Assembly as
members of the Assembly although in reality they are not so elected. The reason for
creating that fiction is that Article 50 of the Treaty expressly provides that the nine
members of the Assembly from each Partner State shall be elected by the National
Assembly. In other words the fiction was created to circumvent an express provision
of the Treaty.
94. In Indira Sawhney vs. Union of India, JT(1999) (9) SC 557: (2000) 1 SCC 168, a
statutory declaration of non¬existent facts as existing, which was unrelated to existing
facts was held to be in violation of Articles 14 and 16 of the Indian Constitution.
Similarly we hold that rules made for the purpose of implementing provisions of the
Treaty cannot be permitted to violate any provision of the Treaty through use of legal
fiction. To uphold the legal fiction in rule 7 of the election rules would be tantamount
37
to upholding an amendment of Article 50, by one Partner State unilaterally. We can

find no justification for doing so.
95. The dichotomy that this situation poses is as follows: The National Assembly of any
democratic sovereign state has the powers of regulating its conduct through rules
of procedure by whatever name called. Once made and adopted, they are binding
until revoked, amended or otherwise modified by the National Assembly itself.
Ordinarily what the National Assembly does in accordance with such rules is lawful
and valid. However, a state, which in exercise of its sovereign power binds itself to an
international treaty, may end up facing conflicting demands, namely the demand to
abide by its treaty obligations and the demand to abide by its own rules that conflict
with the former.
96. In the reference, the claimants plead, and in the written submissions by counsel it is
reiterated, that the election rules were not gazetted or published. However it was not
seriously canvassed, let alone proved, that failure to gazette or publish them rendered
the rules invalid or of no legal effect. In the written submission the rules are described
as “window dressing” with no bearing on Article 50, with the additional passing
remark: “They have not even been gazetted or published independently”. We make
this observation because proof that the rules are of no legal effect would have erased
or avoided the dichotomy. As it is, however, we start from the position that the rules
are binding on the National Assembly and then consider if their inconsistency with
or infringement of Article 50 renders them unlawful and not binding on the National
Assembly.
97. As we pointed out earlier in this judgment, the Treaty provides in Article 33(2) that
decisions of this Court on the interpretation of provisions of the Treaty shall have
precedence over decisions of national courts on a similar matter. That provides a
clear ¬cut solution in the event of conflicting court decisions. But the Treaty does not
provide a similarly explicit solution to the dichotomy where a Treaty provision (say
Community rule) is in conflict with a national rule.
98. We think the solution lies in the basic principle at international law, to the effect that
a state party to a treaty cannot justify failure to perform its treaty obligation by reason
of its internal inhibitions. It cannot be lawful for a state that with others voluntarily
enters into a treaty by which rights and obligations are vested, not only on the state
parties but also on their people, to plead that it is unable to perform its obligation
because its laws do not permit it to do so. The principle is embodied in Article 27 of
the Vienna Convention on the Law of Treaties, which reads ¬–
“A party may not invoke the provisions of its internal law as justification for its failure
to perform a treaty. This rule is without prejudice to article 46.”
99. We were referred to several judicial decisions arising from national law that
contravened or was inconsistent with European Community law, as persuasive
authorities on this subject. See Algemene Transporten Expeditie Onderneming van
Gend enLoos vs. Nederlandse Administratie der Belastingen [1963] ECR1; Flaminio
Costa vs. ENEL [1964] ECR 585; andAmminstrazione delle Finanze dello Stato vs.
Simmenthal [1978] ECR 629.
100. In some cases the national law in issue was in existence when the Community
law came into force, while in others it was enacted after the Community law. In either
38
case where there is conflict between the Community law and the national law the
former is given primacy in order that it may be applied uniformly and that it may be
effective.
101. For purpose of illustration, it suffices to briefly describe what are commonly
called the Factortame cases. Spanish fishermen who owned British registered fishing
boats challenged in the British courts new English legislation for being discriminatory
in breach of European Community law. They applied for an interim injunction to
postpone the operation of the new legislation pending a preliminary ruling on a
reference made to the European Court of Justice (ECJ) to determine if the law was
contrary to Community law. The House of Lords dismissed the application on the
ground that under the English law the courts cannot issue an injunction against the
Crown. That decision was also referred to the ECJ which held that the full effectiveness
of Community law would be impaired if a rule of national law could prevent a court
seized of a dispute governed by Community law from granting an interim relief. On
basis of the preliminary ruling by the ECJ, the House of Lords in R vs. Secretary of
State for Transport, ex p. FactortameLtd. (No.2) [1991] 1 A.C. 603, reconsidered and
reversed its previous decision.
102. In the instant reference, the position of the 1st respondent and the supporting
interveners appears to be on weaker ground. First, while we appreciate that the
election rules were subject of a full debate touching on the provisions of Article 50,
and that the rules were adopted through a democratic decision, the decision was made
irrespective of the awareness of the possibility that the rules were an infringement on
Article 50. Secondly it is noteworthy, that the National Assembly made the rules not
in exercise of sovereignty inherent in a state, but in exercise of a discretionary power
conferred on it by the Treaty. It was bound to make rules that conform to the primary
purpose of the Article that conferred the power, which primary purpose is to provide
for the election of nine members of the Assembly by the National Assembly of each
Partner State. That purpose is defeated by the provision of rule 7 of the election rules,
which provides for a fictitious election in lieu of a real election.
103. We therefore find that the election rules infringe Article 50 to the extent of
their inconsistency with it, which we have identified. In the result we declare that the
National Assembly of Kenya did not undertake an election within the meaning of
Article 50 of the Treaty, and that the election rules in issue infringe the same Article.
104. We order that the claimants shall have costs of the reference to be borne by
the 1st respondent and to be taxed by the Registrar taking into account that a single
applicant could have presented the reference. All other parties shall bear their own
costs.
105. Before taking leave of this reference we are constrained to observe that the lack
of uniformity in the application of any Article of the Treaty is a matter for concern as
it is bound to weaken the effectiveness of the Community law and in turn undermine
the achievement of the objectives of the Community. Under Article 126 of the Treaty
the Partner States commit themselves to take necessary steps to inter alia “harmonise
all their national laws appertaining to the Community”.In our considered opinion
this reference has demonstrated amply the urgent need for such harmonization.
106. Secondly, we also are constrained to say that when the Partner States entered
39
into the Treaty, they embarked on the proverbial journey of a thousand miles which
of necessity starts with one step. To reach the desired destination they have to ensure
that every subsequent step is directed forward towards that destination and not
backwards or away from the destination. There are bound to be hurdles on the way.
One such hurdle is balancing individual state sovereignty with integration. While the
Treaty upholds the principle of sovereign equality, it must be acknowledged that by
the very nature of the objectives they set out to achieve, each Partner State is expected
to cede some amount of sovereignty to the Community and its organs albeit in limited
areas to enable them play their role.
****
Application No. 1 of 2006
Prof. Peter Anyang’ Nyong’o and 10 others And The Attorney General of the
Republic of Kenya and 5 others
Moijo M. ole Keiwua P, Joseph Mulenga VP, Augustino S. L. Ramadhani J, Kasanga

Mulwa J, Joseph S. Warioba J
November 27, 2006
Jurisdiction - Wrongful joinder of parties - Interim injunction- Prima facie case with
a probability of success - whether the court could determine the reference and grant an
interim injunction
Articles: 27, 30, 50, 52(1) of the Treaty for the Establishment of the East African
Community - the Treaty for the Establishment of the East Africa Community (Election
of Members of the Assembly) Rules 2001, Kenya
This application arose from the Applicant’s Reference No.1 of 2006 that averred inter
alia that the process by which the representatives of the Republic of Kenya to the East
African Legislative Assembly were nominated was incurably and fatally flawed in
substance, law and procedure and contravened Article 50 of the EAC Treaty.
The Applicants sought interim orders restraining the 3rd and 4th Respondents
from assembling, convening, recognizing, administering oath of office or otherwise
howsoever presiding over or participating in election of the Speaker or issuing any
notification in recognition of any names of persons as duly nominated representatives
of the Republic of Kenya to the EALA.
Held:
1. Under Article 30, of the Treaty, the Court is empowered to exercise that jurisdiction
by determining the legality of any Act, regulation, directive, decision or action of a
Partner State or an institution of the Community referred to it.
2. 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.
3. The applicants were able to show that they had a prima facie case with a probability of
success and that and the Applicants, EALA and the Community were likely to suffer
irreparable damage if it turned out that one third of the Members of the EALA were
not legally elected. Thus an interim injunction was granted.
41
Ruling
1. The Applicants named above have brought a reference to this Court under Article 30
of the Treaty for the Establishment of the East African Community (“the Treaty”).
In the reference they contend inter alia that the process by which the representatives
of the Republic of Kenya to the East African Legislative Assembly (EALA) were
nominated was incurably and fatally flawed in substance, law and procedure and
contravenes Article 50 of the Treaty in so far as no election was held, and aver that the
Clerk to the National Assembly of Kenya, 2nd Respondent, forwarded to the Clerk
to the EALA, the 3rd Respondent, an illegal list of names of Kenya’s representatives.
They pray that this Court be pleased –
i) To interpret and apply the Treaty to the process of nomination and election of
Kenya’s representatives to the EALA;
ii) To declare that the Rules of Election applied by the Kenya National Assembly
constitute a breach of Article 50 of the Treaty and is (sic) therefore void;
iii) To declare that the process of election, selection and/or nomination of members
to the EALA by the Republic of Kenya is null and void; to declare that the and
6th and 6th Respondents have no mandate to determine persons to represent the
Republic of Kenya at the EALA;
iv) To restrain and prohibit the 3rd and 4th Respondents from assembling,
convening, recognizing, administering oath of office or otherwise presiding over
or participating in election of the Speaker or issuing any notification in recognition
of the following persons: Messrs Clerkson Otieno Karan, Safina Kwekwe Sungu,
Gervase Akhaabi, Christopher Nakuleu, Sarah Godana, Abdi Rahman Haji,
Reuben Oyondi, Catherine Ngima Kimura and Augustine Chemonges Lotodo as
nominated representatives of the Republic of Kenya to the EALA;
v) To direct the Republic of Kenya through the 1st and 2nd Respondent [to] repeat
its nomination and election process in compliance with Article 50 of the Treaty
within reasonable time as the Court may direct; to extend time within which the
Republic of Kenya will transmit names of duly elected members to the 3rd and 4th
Respondents for purposes of being sworn in as members of the EALA; to make
such further or other orders as may be necessary in the circumstances.
2. The reference was filed on November 2006 along with an ex parte application by Notice
of Motion for interim orders inter alia that pending the hearing and determination of
the motion and of the reference this Court be pleased – “to restrain and prohibit the
3rd and 4th Respondents from assembling, convening, recognizing, administering
oath of office or otherwise howsoever presiding over or participating in election of
the Speaker or issuing any notification in recognition of any names of persons as duly
nominated representatives of the Republic of Kenya to the EALA.”
3. When the Notice of Motion came up for hearing ex parte on 17th November 2006,
we considered that notwithstanding its urgency, its import warranted giving the
Respondents opportunity to be heard. Accordingly we ordered that the Respondents
be served so that the motion is heard inter partes on 24th November 2006. The
Respondents were duly served and on the fixed day, the 1st Respondent appeared in
person and the rest by counsel.
42
4. Prior to the hearing the 1st , 2nd 5th and 6th Respondents gave notice that they would
raise as a preliminary objection, this Court’s lack of jurisdiction to hear and determine
the reference and to grant the restraining orders prayed for. In addition the 2nd and
6th Respondents objected to their being joined as parties to the suit.
5. In view of the urgency of the application for the interim order, the primacy of the
objection to the court’s jurisdiction and the need to determine early who are the
rightful parties to a suit, and because of constraint of time, the Court directed at the
commencement of the hearing that the three issues be argued together so that the
decision on them may be given in one ruling. Jurisdiction the contention that this
Court lacks jurisdiction to determine the reference was premised on an argument,
articulated variously by the respective counsel for the Respondents, that in substance
the reference was brought to challenge the election of Kenya’s nine representatives
to the EALA.
6. It was stressed that “the Treaty for the Establishment of the East Africa Community
(Election of Members of the Assembly) Rules 2001” (the Election Rules) under
which the nine representatives were elected were the same under which the outgoing
representatives were elected, and that Applicants had fully participated in the election
process under the same rules without protesting their illegality. It was only after the
Applicants’ candidates failed to be elected that the reference was brought under the
guise of seeking interpretation of the Treaty when the real purpose was to challenge
the outcome of the election.
7. In his submissions, the learned Attorney General stressed that the initial jurisdiction
vested in this Court under clause (1) of Article 27 of the Treaty is very restricted, and
that the Court should not assume jurisdiction that is not yet vested in it or jurisdiction
that is vested elsewhere.
8. He maintained that jurisdiction over the interpretation and application of the
Treaty does not extend to determining questions arising from elections of members
of the EALA. He pointed out that in Article 52(1) the Treaty expressly reserves the
jurisdiction to determine such questions to the appropriate institutions of the Partner
States.
9. Mr.Wekesa, learned counsel for the 6th Respondent, sought to crystallize the
argument. He submitted that under the Court’s jurisdiction vested by Article 27(1)
of the Treaty, the Court was competent to consider and determine whether the
Election Rules under which the National Assembly of Kenya proceeded in electing
the nine representatives infringed Article 50 of the Treaty, but it was not competent
to determine if elections carried out under those rules were lawful because by virtue
of Article 52(1) that was the preserve of the pertinent national institution, namely the
High Court of Kenya. Learned counsel invited the Court to decline to entertain the
feigned reference for interpretation, which in his view was tantamount to abuse of
court process.
10. It is common ground that by virtue of Article 27(1) of the Treaty, this Court has
jurisdiction over the interpretation and application of the Treaty. Under Article 30,
of the Treaty, the Court is empowered to exercise that jurisdiction by determining
the legality of any Act, regulation, directive, decision or action of a Partner State or
an institution of the Community referred to it on the ground that it is unlawful or
43
it infringes provisions of the Treaty. Article 27(1) provides “The Court shall initially
have jurisdiction over the interpretation and application of this Treaty.” And Article
30 provides –
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 grounds that such Act, regulation, directive, decision or action
is unlawful or is an infringement of the provisions of the this Treaty.” It cannot
be gainsaid that in the reference the Court is called upon to determine if the
process by which the Kenya’s representatives to the EALA were nominated and
the Election Rules under which it was undertaken are unlawful or an infringement
of Article 50 of the Treaty on Election of Members of the Assembly. The Article
provides in clause (1) –
2) “The National Assembly of each Partner State shall elect, not from among its
members, nine members of the Assembly, who shall represent as much as it is
feasible, the various political parties represented in the National Assembly, shades
of opinion, gender and other interest groups in that Partner State, in accordance
with such procedure as the National Assembly of each Partner State may
determine.”
11. The Applicants maintain that what transpired was not an election, and the Election
Rules used did not conform to the procedure as envisaged under the said provision.
On the face of it therefore, in order to determine the reference the Court has to
decide what the expression “each Partner State shall elect” means and whether what
transpired fits or does not fit within that meaning.
We are satisfied that this is an issue that falls within the jurisdiction of this Court.
Wrongly joined parties

12. The objections to being joined raised by the 2nd, 5th and 6th Respondents were
virtually on the same ground, namely that by virtue of the provisions of Article 30
of the Treaty they were wrongly enjoined to the reference and the motion. They
maintained that under that Article, only an Act, regulation, directive decision or
action of a Partner State or an institution of the Community may be referred to this
Court. Although they were joined in their respective official capacities, they did not
come within the ambit of Article 30 of the Treaty. The 2nd Respondent was sued
as Clerk to the National Assembly of Kenya. The 5th Respondent, who is the Vice
President of Kenya, was sued as Leader of Government Business in the National
Assembly.
13. The 6th Respondent was sued as Chairman of NARC¬-Kenya, a political party. The
reason for joining the three Respondents is disclosed in paragraph 33 of the reference
where the Applicants aver that the three “colluded and connived in the violation of
law as they usurped the authority of the Party Leader of the Ruling Party NARC and
collectively robbed Kenyans of the opportunity to decide by democratic means their
representatives to the EALA.”
14. Mr. Mutala Kilonzo, learned counsel for the Applicants, strenuously argued that
since the natural person has the capacity to sue in this Court the natural person must
44
have the capacity to be sued in the same Court under the Treaty. He urged the Court
to give to Article 30 an interpretation that would bring natural persons who commit
misfeasance that infringe on provisions of the Treaty within the ambit of Article 30,
to account for their actions.
15. With due respect to counsel for the Applicants, it appears to us that enjoining the 2nd,
5th and 6th Respondents to the reference was under a misconception. 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 connivance, if any, is not actionable under
16. We think there is merit in the objections. The matters referred to this Court, whose
legality it has to determine relate to the responsibility of the Republic of Kenya as a
Partner State, acting by its National Assembly under Article 50 of the Treaty, to elect
nine members of the EALA. Both the process of selecting the nine members whose
names have been remitted to the 3rd Respondent and the Election Rules under which
they were elected or selected were done by the Republic of Kenya through its National
Assembly. It is for that reason that the Attorney General of Kenya was rightly made
the 1st Respondent We are satisfied that the 2nd, 5th and 6th Respondents were
wrongly joined to the reference and we order that they be struck off with costs.
Interim injunction
17. The clear purpose of the application for the grant of an interim injunction is to
prevent the nine persons elected by the National Assembly of Kenya taking office
as Members of the EALA until this Court determines whether or not the process of
their election was unlawful or an infringement of the Treaty. The Applicants contend
that if the injunction is not granted there would be an irreparable damage because
after taking office as Members of the EALA there is no legal means for removing them
even if this Court subsequently determines under the reference that the process of
electing them was not lawful.
18. It is not in dispute that in absence of any restraining order, the said nine persons
will be sworn ¬in along with the Members elected by the National Assemblies of
Tanzania and Uganda. The 3rd and 4th Respondents have confirmed in their
respective affidavits that the commencement of the second EALA will be effected on
29th November 2006 and that all the elected Members will be facilitated to take the
oath of office on that day.
19. The contentious issue is what would happen if they assumed office and subsequently
this Court determined in the reference that the process of their election and the
Election Rules used therein were an infringement of Article 50 of the Treaty. The
learned Attorney General and both Mr. Macharia and Mr. Nyaoga the learned
counsel for the 2nd and 5th Respondents respectively, contended that the Applicants
armed with a declaration of this Court that the process and the rules were unlawful or
an infringement of the Treaty would be able by virtue of the provisions of Article 52
to move the High Court of Kenya to annul the elections.
20. However, the learned counsel for the 6th Respondent appeared to canvass a different
45
view more akin to that of counsel for the Applicants. He submitted that such a
declaration would have no consequence on the election that has already been carried
out under the Election Rules that were competently and lawfully made under Article
50 of the Treaty by the National Assembly of Kenya. He opined that the declaration
would be applied to the making of future procedure for the election of Members of
the EALA.
21. We are constrained to state at the outset that the enormity of this application cannot be
over emphasized. The subject matter of the restraining order prayed for is the EALA,
a very important organ of the Community. The implications of declining to grant the
order and of granting it are grave. In an affidavit in support of the application, Fidellis
Mueke Ngulli deponed that if the order is not granted not only the Applicants will
suffer irreparably but also “the legitimacy of [the] EALA [will be] greatly imperiled by
the unelected and irregularly wounded (sic) members from Kenya”.
22. On the other hand, in their respective affidavits opposing the application, both
the 3rd and 4th Respondents deponed that “the EALA in particular, and the East
African Community in general stands to suffer great hardship if an injunction against
the swearing in of the Members of the EALA is issued.” – It is trite law within the
jurisdictions of the three Partner States in the East African Community, that an
applicant who seeks an interim injunction must show a prima case with a probability
of success. Secondly, a court will not normally grant an interim order unless it is
shown that if the order is not made the applicant is likely to suffer irreparable damage
or injury.
23. We have read the pleadings and documentary annexures so far filed in Court in
the reference and in the motion. We also benefited tremendously from the very
able submissions by all learned counsel who addressed us. We are satisfied that the
applicants have shown that they have a prima facie case with a probability of success.
24. This of course is subject to what pleadings the Respondents will bring in response
to the reference. For obvious reasons, at this stage we would wish to refrain from
discussing the merits of the case in any detail. The finding that there is a prima facie
case with a probability of success is to say no more than that if the Respondents do
not put up any probable defence or response the Applicants would succeed. We also
think that the second criterion for the grant of an interim injunction is satisfied. It
is apparent that in the present state of the law, the hearing and determination of the
reference after the affected persons have taken office might not assist to prevent the
alleged illegality being perpetuated.
25. We are satisfied that not only the Applicants but also the EALA and the Community
itself stand to suffer irreparable damage if it turns out that one third of the Members
of the EALA were not legally elected. The fact that the outgoing Kenyan Members
were elected in a similar manner in 2001, should not be a source of solace but rather
should be a reason to determine soon if the process is illegal and ought to be rectified.
26. Accordingly, we hereby grant an interim injunction restraining the 3rd and 4th
Respondents from recognizing the following persons as duly elected Members of
the EALA or permitting them to participate in any function of the EALA until the
final determination of the reference, namely; Clerkson Otieno Karan, Safina Kwekwe
Sungu, Gervase Akhaabi, Christopher Nakuleu, Sarah Godana, Abdi Rahman Haji,
46
Reuben Oyondi, Catherine Ngima Kimura, and Augustine Chemonges Lotodo .
27. In this ruling we have given our full decisions on the three issues raised in this
application. We shall, however, give our detailed reasons for the same later. The costs
of the application shall be in the cause.
****
Arising From EACJ Reference No.1 of 2006
George Nangale And Prof. Peter Anyang’ Nyong’o & 10 Others And Attorney
General of Kenya and 5 Others
Moijo M. Ole Keiwua, President, Joseph N. Mulenga Vice President, Augustino S. L.

Augustino Judge, Kasanga Mulwa Judge, Harold R. Nsekela Judge
January 27,2007
Correction of judgments or orders- Discretion- Interested party- whether the extracted

order embodied the Court’s decision in accordance with the Rules or whether it
contained grave mistakes.
Rules: 67, 68(2) of the East African Court of Justice Rules of Procedure, 2004
On 27th November 2006, this Court granted, inter alia, an interim injunction and
pursuant to Rule 67 of the East African Court of Justice Rules of Procedure, the
Registrar extracted and signed an order from the ruling embodying the interim
injunction.
On 30th November 2006, the Applicant, who was a member of East African
Legislative Assembly (EALA) representing Tanzania , applied, as an interested
person, under Rule 68(2) seeking correction of the extracted order claiming that it
did not correspond with the decision of the Court.
Held:
1. That some of the wording in the extracted order originated from the prayers in the
Claimants’ motion. This contradicted Rule 67 which requires specification of the
relief granted or other determination of the case.
2. While the Court retains the discretion to refuse to correct its order in appropriate
circumstances, ordinarily the Court ought to correct an order that does not correspond
with the judgment it purports to embody.
3. The extracted order does not correspond to the ruling it purports to embody and
should be corrected to correspond to the terms of the reliefs granted in the ruling of
this Court dated 27th November 2006.
Cases cited:
Moore v Buchanan and Another (1967) 3 All ER 273
48
Ruling
1. On 27th November 2006, this Court delivered a ruling in an interlocutory application

made under the above mentioned Reference by the above named claimants, granting,
inter alia, an interim injunction. Pursuant to r.67 of the East African Court of Justice
Rules of Procedure (the Court Rules), the Registrar extracted and signed an order
from the ruling embodying the interim injunction.
2. By a Notice of Motion dated 30th November 2006, George Nangale, the above
mentioned applicant, applied as an interested person under r.68(2) of the Court
Rules, for an order that the said extracted order be corrected to correspond with the
decision of the Court, which it purports to embody. The grounds of the application
are that:
1) the extracted order is wider than the ruling of the Court;
2) the said order has paralyzed all activities of the East African Legislative Assembly
(EALA) contrary to the ruling of the Court;
3) it is in the interest of justice to allow the application.
3. The application is supported by an affidavit of the Applicant, who deponed, inter alia,
that –
»» He is a member of the EALA representing Tanzania;
»» In a letter dated 27th November 2006, to all Members the Clerk to the EALA
suspended the activities of the EALA on the basis of the Court order aforesaid;
»» At a meeting addressed by the Deputy Secretaries General, the Members were
informed that there was no Assembly and that there were no members of the
EALA;
»» He read the judgment (sic) of the Court and found that the said order is at variance
with it.
The Claimants as well as the 3rd and 4th Respondents opposed the application on the
grounds that the extracted order embodies and is not wider than the ruling.
4. Through a Replying Affidavit sworn by Patrick Gichuru Gichohi, Deputy Clerk of the
Kenya National Assembly, the 1st Respondent, while conceding that the extracted
order was wrongly drawn in some respects, contended that the application lacked
merit in that the inability of the EALA to function arises from the ruling and not from
any error in extracting the order.
5. At the hearing of the application, Mr. Ogalo Wandera, learned counsel for the
Applicant highlighted the contents of the extracted order that were not part of the
ruling and whose inclusion gave the extracted order an erroneously wider scope than
that expressed in the ruling of the Court. He maintained that because of the inclusion
of those extraneous matters the order has been applied to aspects, such as the EALA
members’ privileges, which were not in the Court’s contemplation in its ruling. He
submitted that the court ought to correct any error in its order even if it be minor, and
he stressed that in the instant case the variance between the ruling and the extracted
order warranted correction by expunging the extraneous contents.
6. Mr. Mutula Kilonzo S.C., learned counsel for the Claimants, submitted that the ruling
and the extracted order should not be read in isolation of the prayers in respect of
which the ruling was made and the interim injunction was granted. The expressions
George Nangale and another v AG Kenya
49
in the order objected to by the Applicants, were the expressions employed in the
prayer for the injunction. He maintained that the extracted order was on all fours
with the ruling. Mr. Wanjuki Muchemi, the learned Solicitor General of Kenya,
who appeared, for the 1st Respondent, associated himself with the submissions of
Mr. Mutula Kilonzo and stressed that there was no disparity between the ruling
and the extracted order. Mr. Kaahwa, the learned Counsel to the Community, who
represented the 3 and 4 Respondents, framed two questions which the court has to
consider in an application for correction of an extracted order, namely: 1)Whether the
extracted order embodies the Court’s decision in accordance with r.67 of the Court
Rules; and 2)Whether the order contains grave mistakes. He answered the first in the
affirmative and the second in the negative and submitted that there was no cause for
correction of the order. He relied on Moore vs. Buchanan and Another (1967) 3 All
ER 273, for the proposition that only a grave mistake in an order warrants correction.
7. Rule 67 of the Court Rules requires every decision of this Court to be embodied in an
order and directs that such order shall –
»» be dated as of the date the decision was delivered;
»» contain particulars of the case; and
»» specify clearly the relief granted or other determination of the case.
8. The decision in issue in this application is the ruling this Court delivered on 27th
November 2006. The ruling relates to the Claimants’ application under the Reference,
for an interim injunction and to the Respondents’ preliminary objections. The
correction sought in this application, however, relates only to the relief of an interim
injunction, which the Court granted not in the terms of the application but in the
following terms
“Accordingly, we hereby grant an interim injunction restraining the 3 and 4
Respondents from recognizing the following persons as duly elected Members of the
EALA or permitting them to participate in any function of the EALA until the final
determination of the reference.”
9. That was followed by the list of names of the nine persons submitted to the 4th
Respondent as the Members of the EALA elected by the Kenya National Assembly.
10. The part of the order extracted and signed by the Registrar relevant to this application
reads as follows –
“It Is Hereby Ordered:
1…
2. That pending the hearing and final determination of the reference herein, the 3rd
and 4th Respondents are hereby restrained and prohibited from assembling,
convening, recognizing, administering oath of office or otherwise howsoever
presiding over or participating in election of the Speaker or issuing any notification
in recognition of the following persons: Messrs (names of the 9 persons) as
nominated representatives of Republic of Kenya to the EALA.”
11. Much as we may agree with learned counsel for the Claimants and the Respondents
that in substance both the order as pronounced in the ruling and as extracted amount
to an interim injunction with restraints and prohibitions directed to the 3rd and 4th
Respondents in respect of the nine named persons, the restraints and prohibitions
are at such variance that it cannot be appropriately said that the latter was extracted
50
from the former in compliance with r. 67 of the Court Rules. We note the explanation
volunteered by learned counsel for the Claimants that some of the wording in the
extracted order originate from the prayers in the Claimants’ motion. In our view
that per se contradicts r.67 which requires the order to embody the decision of the
Court not the pleadings or prayers of the parties. What is more, we are constrained
to observe, without discussing in detail, that far from clarifying the relief granted, as
required under r.67, the added wording has the tendency of confusing it.
12. The Court’s power to correct errors in its judgments and orders is provided for under
r.68 of the Court Rules. Sub-rule (1), provides for correction of judgments. Sub-rule
(2), under which this application is brought, provides –
“An order of the Court may at any time be corrected by the Court either of its own
motion or on application by any interested person if it does not correspond with the
judgment it purports to embody or, where the judgment has been corrected under
sub-rule (1), with the judgment as corrected.”
13. Clearly, this is a discretionary power. While ordinarily the Court ought to correct an
order that does not correspond with the judgment it purports to embody, the Court
retains the discretion to refuse to correct its order in appropriate circumstances. In
Moore vs. Buchanan (supra) the English Court of Appeal, applying the equivalent
rules under the R.S.C., held that there was discretion to refuse to correct an error
in an order “wherever something had intervened subsequently which rendered it
inexpedient or inequitable to make the correction.” We are of a similar view in respect
of r.68 (2) of the Court Rules, and would exercise the discretion on the same criteria.
14. In the instant case, we are satisfied that the extracted order does not correspond to the
ruling it purports to embody. The parties opposing the application have not shown
that it would be inexpedient or inequitable to correct the extracted order so as to
make it correspond to the ruling. Indeed learned counsel for the Claimants conceded
that no harm would arise from the proposed correction.
15. For these reasons we allow the application and direct that the extracted order be
corrected to correspond and be in the terms of the reliefs granted in the ruling of this
Court dated 27th November 2006. We make no orders as to costs.
****
The East African Court of Justice
James Katabazi and 21 Others And Secretary General of The East African
Community and The Attorney General Of The Republic Of Uganda
Moijo M. ole Keiwua P, Joseph N. Mulenga VP, Augustino S. L. Ramadhani J, Mary

Stella Arach-Amoko J, Harold R. Nsekela J
November 1, 2007
Cause of action - Detention - Rule of law- Res judicata - Jurisdiction over human rights
- Responsibilities of the EAC Secretary General - Whether deployment of agents of the
2nd respondent in the Uganda High Court premises, the re-arrest and incarceration
of the applicants after bail had been granted infringed the EAC Treaty - Whether the
EAC Secretary General can initiate and investigate matters falling within ambit of the
Treaty.
Articles: 6, 8(1)(c), 23,27,29, 30 and 71(1) (d) of the Treaty for the Establishment of
the East African Community
The Applicants were charged in the High Court with treason and misprision of
treason in 2004 without bail. On 16th November 2006 when bail was eventually
granted, security personnel surrounded the court, interfered with the preparation of
the bail documents and rearrested the applicants. On 24th November 2006 applicants
were charged before the General Court Martial with unlawful possession of firearms
and terrorism which were the same charges brought before the High Court.
The Uganda Law Society challenged the interference of the court process by
the security personnel before the Constitutional Court of Uganda and the
constitutionality of conducting prosecutions simultaneously in civilian and military
courts. The Constitutional Court ruled that the interference was unconstitutional
but despite that decision, the applicants were not released from detention hence they
filed this reference. They claimed that the inaction of the EAC Secretary General is
an infringement of the Treaty.
Held:
1. The doctrine of res judicata did not apply in this case as the parties were not the same
and could be said to have been litigating under the same title.
2. While the Court will not assume jurisdiction to adjudicate on human rights disputes,
it will not abdicate from exercising its jurisdiction of interpretation under Article 27
(1) merely because the reference includes allegation of human rights violation.
3. The intervention by the armed security agents of Uganda to prevent the execution
of a lawful Court order violated the principle of the rule of law and consequently
contravened the Treaty.
4. While Article 71 (1) (d) applies to this reference, without knowledge the Secretary
52
General could not be expected to conduct any investigation and come up with a
report under Article 29(1) of the Treaty.
Cases cited;
Bennett v. Horseferry Road Magistrates’ Court and another [1993] 2 All ER 474
Connelly v. DPP [1964] 2 All ER 401 at 442:
Etiennes Hotel v National Housing Corporation Civil Reference No. 32 of 2005 Court of
Appeal of Tanzania
Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd. [1969] E. A. 696,
700
The Republic v. Gachoka and Another, [1999] 1 EA 254
Judgment
1. This is a reference by sixteen persons against the Secretary General of the East African
Community as the 1st respondent and the Attorney General of Uganda as the 2nd
Respondent.
2. The story of the claimants is that: During the last quarter of 2004 they were charged
with treason and misprision of treason and consequently they were remanded in
custody. However, on 16th November, 2006, the High Court granted bail to fourteen
of them. Immediately thereafter the High Court was surrounded by security personnel
who interfered with the preparation of bail documents and the fourteen were re-
arrested and taken back to jail.
3. On 24th November, 2006, all the claimants were taken before a military General
Court Martial and were charged with offences of unlawful possession of firearms
and terrorism. Both offences were based on the same facts as the previous charges
for which they had been granted bail by the High Court. All claimants were again
remanded in prison by the General Court Martial.
4. The Uganda Law Society went to the Constitutional Court of Uganda challenging the
interference of the court process by the security personnel and also the constitutionality
of Despite that decision of the Constitutional Court the complainants were not released
from detention and hence this reference with the following complaint: The claimants
aver that the rule of law requires that public affairs are conducted in accordance with
the law and decisions of the Court are respected, upheld and enforced by all agencies
of the Government and citizens and that the actions of a Partner State of Uganda, its
agencies and the second respondent have in blatant violation of the Rule of Law and
contrary to the Treaty continued with infringement of the Treaty to date.
5. The claimants have sought the following orders:
a) That the act of surrounding the High Court by armed men to prevent enforcement
of the Court’s decision is an infringement of Articles 7(2), 8(1)(c) and 6 of the
Treaty for the Establishment of the East African Community (The Treaty).
b) That the surrounding of the High Court by armed men from the Armed Forces
of Uganda is in itself an infringement of the Fundamental principles of the
Community in particular regard to peaceful settlement of disputes.
c) The refusal by the second respondent to respect and enforce the decision of the
James Katabazi and others v EAC Secretary General
53
High Court and the Constitutional Court is infringement of Articles 7(2), 8(1)(c)
and 6 of the Treaty.
d) The continual arraignment of the applicants who are civilians before a military
court is an infringement of Articles 6, 7, and 8 of the Treaty for Establishment of
the East African Community.
e) The inaction and the loud silence by the first respondent is an infringement of
f) Costs for the Reference.
6. The 1st respondent in his response at the outset sought the Court to dismiss the
reference on two grounds: One, that there was no cause of action disclosed against
him, and two, that the affidavits in support of the reference were all incurably
defective. In the alternative, the 1st respondent argued that:
The allegations which form the basis of the Application have at no time been brought
to the knowledge of the Respondent and the Claimants are, therefore, put to strict
proof.
7. The 2nd respondent, on the other hand, virtually conceded the facts as pleaded by
the claimants. After admitting that the claimants were charged with treason and
misprision of treason, the 2nd respondent stated in his response:
a) That on 16th November, 2005, the security Agencies of the Government of Uganda
received intelligence information that upon release on bail, the Claimants were to
be rescued to escape the course of justice and to go to armed rebellion.
b) That the security Agencies decided to deploy security at the High Court for purely
security reasons and to ensure that the claimants are re-arrested and taken before
the General Court Martial to answer charges of terrorism and unlawful possession
of firearms.
c) That on 17th November, 2005, all the Claimants were charged in the General Court
Martial with terrorism and unlawful possession of firearms which are service
offences according to the Uganda People’s Defence Forces Act, No. 7 of 2005.
Thus, in effect, the 2nd respondent is affirming that the acts did take place but contends
that they did not breach the rule of law.
8. The claimants were represented by Mr. Daniel Ogalo, learned counsel, while the
1st respondent had the services of both Mr. Colman Ngalo, learned advocate, and
Mr. Wilbert Kaahwa, learned Counsel to the Community. The 2nd respondent was
represented for by Mr. Henry Oluka, learned Senior State Attorney of Uganda assisted
by Mr. George Kalemera and Ms. Caroline Bonabana, learned State Attorneys of
Uganda.
9. When the matter came up for the scheduling conference under Rule 52 of the East
African Court of Justice Rules of Procedure (The Rules), Mr. Ngalo raised a preliminary
objection that there is no cause of action established against the respondent. The
pleadings of the claimants do not disclose that at any stage, the Secretary General
was informed by the applicants or by anybody at all that the applicants had been
incarcerated or confined or that their rights were being denied.
10. Mr. Ogalo responded by submitting that under Article 71(1)(d) of the Treaty one of
the functions of the Secretariat, of which the 1st respondent is head, is:
“the undertaking either on its own initiative or otherwise, of such investigations,
54
collection of information, or verification of matters relating to any matter affecting
the Community that appears to it to merit examination Mr. Ogalo contended that it
is not necessary that the respondent must be told by any person “because he can, on
his own, initiate investigations”.
11. The Court dismissed the preliminary objection but we reserved our reasons for doing
so and we now proceed to give them. At the time of hearing the preliminary objection
the Court had not reached the stage of a scheduling conference under Rule 52. It is
at that conference that points of agreement and disagreement are sorted out. It was
our considered opinion that the matter raised could appropriately be classified at the
scheduling conference as a point of disagreement.
12. But apart from that the matter raised by Mr. Ngalo was not one which could be dealt
with as a preliminary objection because it was not on point of law but one involving
facts. As Law, J. A. of the East African Court of Appeal observed in Mukisa Biscuit
Manufacturing Co. Ltd. v. West End Distributors Ltd. [1969] E. A. 696at p. 700:
‘So far as I am aware, preliminary objection consists of a point of law which has
been pleaded, or which arises by clear implication out of pleadings, and which if
argued as a preliminary point may dispose of the suit. Examples are an objection to
the jurisdiction of the court, or a plea of limitation, or a submission that the parties
are bound by the contract giving rise to the suit to refer the dispute to arbitration’.
13. Then at p. 701 Sir Charles Newbold, P. added:
‘A preliminary objection is in the nature of what used to be a demurrer. It raises a
pure point of law which is argued on the assumption that all the facts pleaded by the
other side are correct. It cannot be raised if any fact has to be ascertained or if what is
sought is the exercise of judicial discretion.’
14. The Court of Appeal of Tanzania in Civil Reference No. 32 of 2005, Etienne Hotel
v National Housing Corporation dealt with a similar issue and, after citing Mukisa
Biscuits with approval, held:
Here facts have to be ascertained in all the remaining six grounds of the so called
preliminary objection and that is why the respondent has filed two affidavits which
have been objected to by the applicant.
We are of the decided view that grounds of preliminary objection advanced cannot
be disposed off without ascertaining facts. These are not then matters for preliminary
objection. So, we dismiss the motion for preliminary objection with costs.
15. Whether or not the 1st respondent had knowledge of what was happening to the
complainants in Uganda can never ever be a point of law but one of fact to be proved
by evidence and, therefore, it could not be a matter for a preliminary objection and
hence the dismissal.
16. We may as well point out here, for the sake of completeness, that Mr Ngalo also
challenged the legality of the affidavits filed in support of the reference. However, in
the course of answering questions from the bench he abandoned his objection in the
following terms:
Your Lordships, I am not going to pursue this point. I concede that these affidavits are
sufficient for the purposes of this application.
17. Two issues were agreed upon at the scheduling conference which were:
1) Whether the invasion of the High Court premises by armed agents of the second
55
respondent, the re-arrest of the complainants granted bail by the High Court
and their incarceration in prison constitute infringement of the Treaty for the
Establishment of the East African Community.
2) Whether the first respondent can on his own initiative investigate matters falling
under the ambit of the provisions of the Treaty.
18. As for the first issue Mr Ogalo submitted that the Court was called on to interpret
Articles 6, 7, 8, 29 and 71 of the Treaty and implored the Court to do so by looking
at “the ordinary meaning of the words used in those provisions, the objectives of the
Treaty and the purposes of those articles”.
19. His main plank of argument was that the acts complained of violated one of the
fundamental principles of the Community as spelled out in Article 6(d), that is, rule
of law. As to the import of that doctrine he referred us to The Republic v. Gachoka and
Another, [1999] 1 EA 254;Bennett v. Horseferry RoadMagistrates’ Court and Another
[1993] 2 All ER 474; and a passage in Kanyeihamba’s Commentaries on Law, Politics
and Governance (Renaissance Media Ltd, 2006) p 14.
20. The learned advocate pointed out that the first complaint is the act of surrounding
the High Court of Uganda by armed men so as to prevent the enforcement of the
decision of the Court. The second act was the re-arrest and the incarceration of the
complainants.
21. Mr. Ogalo pointed out that the acts complained of constituted contempt of court
and also interference with the independence of the Judiciary. He concluded that both
contempt of court and the violation of the independence of the judiciary contravene
the principle of the rule of law.
22. As for the second issue Mr. Ogalo was very brief. He submitted that the 1st respondent
is empowered by Article 71 (1)(d), on his own initiative, to conduct investigation,
collect information or verify facts relating to any matter affecting the Community that
appears to him to merit examination. The stand taken by Mr. Ogalo was that if the 1st
respondent properly exercised his powers under the Treaty, he should have known
the matters happening in Uganda as a Partner State and take appropriate actions. He,
therefore, asked the Court to find both issues in favour of the complainants.
23. In reply Mr. Ngalo pointed out that what concerned the 1st respondent was the
second issue. The learned counsel submitted that the complainants are alleging
that the respondent ought to have reacted to what the 2nd respondent was doing in
Uganda. However, he contended, there is no evidence that the 1st respondent was
aware of those activities. He pointed out that Article 29 starts by providing “Where
the Secretary General considers that a Partner State has failed …” and he argued that
for the Secretary General to “consider” he has to be aware but the complainants have
failed to establish that awareness.
24. As for Article 71 Mr. Ngalo submitted that it provides for the functions of the
Secretariat as an institution of the Community and not as to what happens in the
Partner States. For the 2nd respondent Mr. Oluka dealt with the surrounding of
the High Court, the re-arrest and the continued incarceration of the complainants.
The learned Senior State Attorney pointed out that all the three matters were fully
canvassed and decided upon by the Constitutional Court of Uganda. Therefore, he
submitted that this Court is prohibited by the doctrine of res judicata from dealing
56
with those issues again.
25. Mr. Oluka conceded that though the facts in this reference and those which were in
the petition before the Constitutional Court of Uganda are substantially the same, the
parties are different. In the Constitutional Petition No. 18 of 2005, the parties were
The Uganda Law Society and the Attorney General of Uganda while in this reference
the parties are James Katabazi and 21 Others, on the one hand, and the Secretary
General of the Community and the Attorney General of Uganda, on the other hand.
Nevertheless, Mr. Oluka stuck to his guns that the doctrine of res judicata applies to
this reference.
26. He also submitted that under Article 27 (1) this Court does not have jurisdiction to
deal with matters of human rights until jurisdiction is vested under Article 27(2). He,
therefore, asked the Court to dismiss the reference with costs.
27. There are three issues which we think we ought to dispose of at the outset: First,
whether or not Article 71 is relevant in this application. Second, whether or not the
doctrine of res judicata applies to this reference. Last, is the issue of the jurisdiction of
this Court to deal with human rights.
28. It is the argument of Mr. Ogalo that Article 71 (1) (d) imposes on the 1st respondent
the duty to collect information or verify facts relating to any matter affecting the
Community that appears to him to merit examination. Mr. Ngalo, on the other
hand, contends that Article 71 (1) (d) sets out the functions of the Secretariat as an
institution of the Community and not as to what happens in the Partner States.
Article 71 (1) (d) provides as follows:
The Secretariat shall be responsible for:
a)…
b)…
c)…
d) the undertaking either on its own initiative or otherwise, of such investigations,
collection of information, or verification of matters relating to any matter affecting
the Community that appears to it to merit examination.
29. Mr. Ngalo wanted to confine the functions of the Secretariat under Article 71 (1) (d)
to internal matters of the Secretariat as an organ, which he erroneously referred to
as an institution, divorced from the duties imposed on the Secretary General under
Article 29. It is, therefore, our considered opinion that Article 71 (1) (d) applies to
this reference.
30. Are we barred from adjudicating on this reference because of the doctrine of res
judicata? The doctrine is uniformly defined in the Civil Procedure Acts of Kenya,
Uganda and Tanzania as follows:
No court shall try any suit or issue in which the matter directly and substantially in
issue has been directly and substantially in issue in a former suit between the same
parties, or between parties under whom they or any of them claim, litigating under
the same title, in a court competent to try such subsequent suit or the suit in which
such issue has been subsequently raised, and has been heard and finally decided by
such court.
31. Three situations appear to us to be essential for the doctrine to apply: One, the matter
must be “directly and substantially” in issue in the two suits. Two, parties must be the
57
same or parties under whom any of them claim litigating under the same title. Lastly,
the matter was finally decided in the previous suit. All the three situations must be
available for the doctrine of res judicata to operate. In the present case one thing is
certain: The parties are not the same and cannot be said to litigate under the same
title. Mr. Oluka himself has properly conceded that.
32. Secondly, while in the Constitutional Court of Uganda the issue was whether the
acts complained of contravene the Constitution of Uganda, in the instant reference
the issue is whether the acts complained of are a violation of the rule of law and,
therefore, an infringement of the Treaty. Therefore, the doctrine does not apply in
this reference.
33. Does this Court have jurisdiction to deal with human rights issues? The quick answer
is: No it does not have. Jurisdiction of this Court is provided by Article 27 in the
following terms:
1. The Court shall initially have jurisdiction over the interpretation and application
of this Treaty.
2. The Court shall have such other original, appellate, human rights and other
jurisdictions will be determined by the Council at a suitable subsequent date.
To this end, the Partner States shall conclude a protocol to operationalise the
extended jurisdiction.
34. It very clear that jurisdiction with respect to human rights requires a determination
of the Council and a conclusion of a protocol to that effect. Both of those steps have
not been taken. It follows, therefore, that this Court may not adjudicate on disputes
concerning violation of human rights per se.
35. However, let us reflect a little bit. The objectives of the Community are set out in
Article 5 (1) as follows:
1. The objectives of the Community shall be to develop policies and programmes
aimed at widening and deepening co-operation among the Partner States in political,
economic, social and cultural fields, research and technology, defence, security and
legal and judicial affairs, for their mutual benefit.
Sub-Articles (2) and (3) give details of pursuing and ensuring the attainment of the
objectives as enshrined in sub-article (1) and of particular concern here is the “legal
and judicial affairs” objective.
36. Then Article 6 sets out the fundamental principles of the Community which governs
the achievement of the objectives of the Community, of course as provided in Article
5 (1). Of particular interest paragraph (d)which talks of the rule of law and the
promotion and the protection of human and peoples rights in accordance with the
provisions of the African Charter on Human and Peoples’ Rights.
37. Article 7 spells out the operational principles of the Community which govern the
practical achievement of the objectives of the Community in Sub-Article (1) and seals
that with the undertaking by the Partner States in no uncertain terms of Sub-Article
(2):
The Partner States undertake to abide by the principles of good governance,
including adherence to the principles of democracy,the rule of law, social justice and
maintenance of universally accepted standards of human rights.
38. Finally, under Article 8 (1) (c) the Partner States undertake, among other things:
58
Abstain from any measures likely to jeopardize the achievement of those objectives or
the implementation of the provisions of this Treaty.
39. While the Court will not assume jurisdiction to adjudicate on human rights disputes,
it will not abdicate from exercising its jurisdiction of interpretation under Article 27
(1) merely because the reference includes allegation of human rights violation.
40. Now, we go back to the substance of this reference. As we have already observed
in this judgment, the 2nd respondent has conceded the facts which are the subject
matter of this reference and, so, they are not in dispute. He has only offered some
explanation that the surrounding of the Court, the re-arrest, and therefore, the non
observance of the grant of bail, and the re-incarceration of the complainants were
all done in good faith to ensure that the complainants do not jump bail and go to
perpetuate insurgency.
41. Mr. Ogalo invited us to find that explanation unjustified because it was not supported
by evidence. We agree with him and we would go further and observe that “the end
does not justify the means”.
42. The complainants invite us to interpret Articles 6(d), 7(2) and 8(1)(c) of the Treaty
so as to determine their contention that those acts, for which they hold the 2nd
respondent responsible, contravened the doctrine of the rule of law which is enshrined
in those articles.
43. The relevant provision of Article 6(d) provides as follows:
The fundamental principles that shall govern the achievement of the objectives of the
Community by the Partner States shall include:
a)…
b)…
c)…
d) good governance including adherence to the principles of democracy, the rule
of law, accountability, transparency, social justice, equal opportunities, gender
equality, as well as the recognition, promotion and protection of human and
peoples rights in accordance with the provisions of the African Charter on Human
and Peoples’ Rights.
The starting point is what does rule of law entail?
44. From Wikipedia, the Free Encyclopedia:
The rule of law, in its most basic form, is the principle that no one is above the
law. The rule follows logically from the idea that truth, and therefore law, is based
upon fundamental principles which can be discovered, but which cannot be created
through an act of will.
45. The Free Encyclopedia goes further to amplify:
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 established
procedural steps that are referred to as due process. The principle is intended to be
a safeguard against arbitrary governance, whether by a totalitarian leader or by mob
rule. Thus, the rule of law is hostile both to dictatorship and to anarchy.
46. Here at home in East Africa Justice George Kanyeihamba in Kanyeihamba’s
Commentaries on Law, Politics and Governance at page 14 reiterates that essence in
59
the following words:

The rule of law is not a rule in the sense that it binds anyone. It is merely a collection
of ideas and principles propagated in the so-called free societies to guide lawmakers,
administrators, judges and law enforcement agencies. The overriding consideration
in the theory of the rule of law is the idea that both the rulers and the governed are
equally subject to the same law of the land.
47. It is palpably clear to us, and we have no flicker of doubt in our minds, that the
principle of “the rule oflaw”contained in Article 6(d) of the Treaty encapsulates the
import propounded above. But how have the courts dealt with it? In The Republic v.
Gachoka and Another the Court of Appeal of Kenya reiterated the notion that rule
of law entails the concept of division of power and its strict observance. In Bennett v.
Horseferry Road Magistrates’ Court and Another, the House of Lords took the position
that the role of the courts is to maintain the rule of law and to take steps to do so.
48. In that appeal the appellant, a New Zealander, while living in Britain obtained a
helicopter by false pretences and then fled the country. He was later found in South
Africa but as there was no extradition treaty between Britain and South Africa, the
police authorities of the two countries conspired to kidnap the appellant and took
him back to Britain. His defence to a charge before a divisional court was that he was
not properly before the court because he was abducted contrary to the laws of the two
countries. That defence was dismissed by the divisional court.
49. However, on appeal to the House of Lords Lord Griffiths remarked at page 108:
‘If the Court is to have the power to interfere with the prosecution in the present
circumstances it must be because the judiciary accept a responsibility for the
maintenance of the rule of law that embraces a willingness to oversee executive action
and to refuse to countenance behaviour that threatens either basic human rights or
the rule of law.’
His Lordship went on: It is to my mind unthinkable that in such circumstances the
court should declare itself to be powerless and stand idly by. He then referred to the
words of Lord Devlin in Connelly v. DPP [1964] 2 All ER 401 at 442:
The courts cannot contemplate for a moment the transference to the executive of the
responsibility for seeing that the process of law is not abused.
The appeal was allowed and the appellant was let scot-free.
50. Have the facts complained of in this reference breached the sacred principle of rule of
law as expounded above? Let us briefly reiterate the facts even at the risk of repeating
ourselves; The complainants were granted bail by the High Court of Uganda but some
armed security agents of Uganda surrounded the High Court premises pre-empting
the execution of the bail, re-arrested the complainants, re-incarcerated them and re-
charged them before a Court Martial. The complainants were not released even after
the Constitutional Court of Uganda ordered so.
51. Mr. Ogalo left no stone unturned to persuade us to find that what the soldiers did
breached the rule of law. He referred us to similar facts in the case of Constitutional
Rights Project and Civil Liberties v Nigeria, Communication 143/95, 150/96 – AHG/222
(XXXVI) Annex V p 63. In that matter Chief Abiola, among others, was detained and
the Federal Government of Nigeria refused to honour the bail granted to him by
court. In the said Communication the African Commission on Human Rights had
60
this to say in paragraph 30 on page 67: The fact that the government refuses to release
Chief Abiola despite the order of his release on bail made by the Court of Appeal is a
violation of Article 26 which obliges State parties to ensure the independence of the
judiciary. Failing to recognize a grant of bail by the Court of Appeal militates against
the independence of the judiciary.
52. The facts in that Communication are on all fours with the present reference and we
find that the independence of the judiciary, a corner stone of the principle of the rule
of law, has been violated.
53. The African Commission went further to observe in paragraph 33 that:
The government attempts to justify Decree No. 14 with the necessity for state security.
While the Commission is sympathetic to all genuine attempts to maintain public
peace, it must note that too often extreme measures to curtail rights simply create
greater unrest. It is dangerous for the protection of human rights for the executive
branch of government to operate without such checks as the judiciary can usefully
perform.
54. That is exactly what the Government of Uganda through the 2nd Attorney General,
the respondent, attempted to do, to justify the actions of the Uganda Peoples’ Defence
Forces:
a) That on 16th November, 2005, the security Agencies of the Government of Uganda
received intelligence information that upon release on bail, the Claimants were to
be rescued to escape the course of justice and to go to armed rebellion.
b) That the security Agencies decided to deploy security at the High Court for purely
security reasons and to ensure that the claimants are re-arrested and taken before
the General Court Martial to answer charges of terrorism and unlawful possession
of firearms.
55. We on our part are alarmed by the line of defence offered on behalf of the Government
of Uganda which if endorsed by this Court would lead to an unacceptable and
dangerous precedent, which would undermine the rule of law.
56. Much as the exclusive responsibility of the executive arm of government to ensure the
security of the State must be respected and upheld, the role of the judiciary to provide
a check on the exercise of the responsibility in order to protect the rule of law cannot
be gainsaid. Hence the adjudication by the Constitutional Court of Uganda referred
to earlier in this judgment. In the context of the East African Community, the same
concept is embodied in Article 23 which provides:
The Court shall be a judicial body which shall ensure the adherence to law in the
interpretation and application and compliance with this Treaty.
57. We, therefore, hold that the intervention by the armed security agents of Uganda
to prevent the execution of a lawful Court order violated the principle of the rule of
law and consequently contravened the Treaty. Abiding by the court decision is the
corner stone of the independence of the judiciary which is one of the principles of the
observation of the rule of law.
58. The second issue is rather nebulous and we better reproduce it for a better
comprehension:
Whether the first respondent can on his own initiative, investigate matters falling
under the ambit of the provisions of the Treaty.
61
Article 29(1) of the Treaty provides as follows:

Where the Secretary General considers that a Partner State has failed to fulfill an
obligation under this Treaty or has infringed a provision of this Treaty, the Secretary
General shall submit his or her findings to the Partner State concerned for that
Partner State to submit its observations on the findings.
59. The Secretary General is required to “submit his or her findings to the Partner State
concerned”. It is obvious to us that before the Secretary General is required to do so,
she or he must have done some investigation. From the unambiguous words of that
sub-Article there is nothing prohibiting the Secretary General from conducting an
investigation on his/her own initiative. Therefore, the glaring answer to the second
issue is: Yes the Secretary General can on his own initiative investigate such matters.
60. But the real issue here is not whether he can but whether the 2nd Secretary General,
that is, the respondent, should have done so. It was in this regard that there was heated
debate in the preliminary objection on whether or not the Secretary General must
have intelligence of some activity happening in a Partner State before he undertakes
an investigation.
61. We dismissed the preliminary objection for the reason that the issue was not a point of
law but one of fact requiring evidence. That evidence of whether or not the respondent
had knowledge, however, was never produced by the complainants in the course of
the hearing. This, therefore, is the appropriate juncture to determine whether or not
knowledge is an essential prerequisite for an investigation by the respondent.
62. We are of the decided opinion that without knowledge the Secretary General could
not be expected to conduct any investigation and come up with a report under Article
29(1).
63. We may as well add that it is immaterial how that information comes to the attention
of the Secretary General. As far as we are concerned it would have sufficed if the
complainants had shown that the events in Uganda concerning the complainants
were so notorious that the 1st respondent could not but be aware of them. But that
was not the case for the complainants.
64. In almost all jurisdiction courts have the powers to take judicial notice of certain
matters. We are not prepared to say that what is complained of here is one such
matter. However, the powers that the Secretary General has under Article 29 are so
encompassing and are pertinent to the advancement of the spirit of the re-institution
of the Community and we dare observe that the Secretary General ought to be more
vigilant than what his response has portrayed him to be.
65. In any case, it is our considered opinion that even if the 1st respondent is taken to
have been ignorant of these events, the moment this application was filed and a copy
was served on him, he then became aware, and if he was mindful of the delicate
responsibilities he has under Article 29, he should have taken the necessary actions
under that Article. That is all that the complainants expected of him: to register
with the Uganda Government that what happened is detestable in the East African
Community.
66. In the result we hold that the reference succeeds in part and 2nd the claimants are to
have their costs as against the respondent.
*****
Christopher Mtikila And The Attorney General of The United Republic

Of Tanzania and The Secretary General of The East African Community
And
Dr. George Francis Nangale, Sylvia Kate Kamba, Dr. Waalid Aman Kabourou,
Janet Deo Mmari, Abdullah A. H. Mwinyi, Dr. Gharib Said Bilal, Dr. John Didas
Masaburi, Septuu Mohamed Nassor, Fortunatus Lwanyantika Masha - Interveners
Moijo M. ole Keiwua P, Augustino S. L. Ramadhani J, Kasanga Mulwa J, Mary Stella

Arach-Amoko J. and Harold R. Nsekela J
April 25, 2007
Jurisdiction- East African Legislative Assembly elections - Whether the Applicant had
locus standi -Whether the Court could annul the improper election of Tanzania’s
representatives to EALA.
Articles: 27, 30, 48 (1) (a), 50 (1) and 51(1) of the Treaty for the Establishment of the
East African Community.
In 2001 the National Assembly of the United Republic of Tanzania elected nine
persons to the East African Legislative Assembly two of whom were Dr. Harrison
Mwakyembe and Mrs. Beatrice Shelukindo. In 2005 these two ran for and were
elected Members of Parliament of the National Assembly and, pursuant to Article 51
(3) (c), they vacated their seats in the Legislative Assembly.
In March 2006, Dr. Norman Sigalla and Mrs. Hulda Stanley Kibacha were elected,
to fill the two Tanzanian vacancies in EALA through by-elections in the National
Assembly. In October, 2006, the National Assembly elected nine persons whose
names were submitted to EALA. Dr. Sigalla and Mrs. Kibacha were unsuccessful and
the Applicant claimed that their tenure had not ended and as per Article 51(1) so the
National Assembly ought to have elected only seven new Members.
Since nine persons were elected, the Applicant argued that the total number of
Members of the Legislative Assembly from Tanzania was eleven contrary to Article
50 (1) of the Treaty.
Held:
The Court had no jurisdiction to entertain the application seeking to annul the elections
held by the National Assembly in October, 2006. Further, the declaration that two people
were improperly elected and were not therefore Members of the Legislative Assembly
was in the domain of the High Court of Tanzania.
Christopher Mtikila and others v AG United Republic of Tanzania
63
Cases cited
Prof. Peter Anyang’ Nyong’o and Ten Others v. A. G. of Kenya and Two Others and four
Interveners, EACJ Reference No. 1 of 2006.
Ruling
1. Christopher Mtikila, the Applicant in this reference, has come to this Court under
Article 30 of the Treaty for the Establishment of the East African Community (the
Treaty) and is seeking the enforcement of and, therefore, the compliance by the two
Respondents of Articles 48 (1) (a) and 50 (1) of the Treaty. The Respondents are:
the Attorney General of the United Republic of Tanzania (1st Respondent), and the
Secretary General of the East African Community (2nd Respondent).
2. The Applicant’s case is that one of the organs of the East African Community (the
Community) established under Article 9 of the Treaty is the East African Legislative
Assembly (the Legislative Assembly) which comprises twenty ¬seven elected Members
and five ex officio Members according to Article 48 (1) of the Treaty. Article 50 (1)
of the Treaty provides that each Partner State elects nine members to the Legislative
Assembly.
3. Sometime in 2001 the National Assembly of the United Republic of Tanzania
(hereinafter referred to as the National Assembly) elected nine persons to the
Legislative Assembly two of whom were Dr. Harrison Mwakyembe and Mrs. Beatrice
Shelukindo. In 2005 these two ran for and were elected Members of Parliament of the
National Assembly and, pursuant to Article 51 (3) (c), they were required to vacate
their seats in the Legislative Assembly. They did that.
4. The National Assembly held by elections, as it were, in March 2006, and elected Dr.
Norman Sigalla and Mrs. Hulda Stanley Kibacha, to fill the two Tanzanian vacancies
in the Legislative Assembly. However, in October, 2006, the National Assembly held
a General Election, so to speak, and elected nine persons whose names have been
submitted to take up the Tanzanian seats in the second Legislative Assembly since
the re¬birth of the Community. Dr. Sigalla and Mrs. Kibacha were unsuccessful
contenders in that election.
5. The Applicant argues that Article 51 (1) of the Treaty prescribes the tenure of every
Member of the Legislative Assembly to be five years. So, he contends that the tenure
of Dr. Sigalla and Mrs. Kibacha has not ended and, therefore, in October, 2006, the
National Assembly ought to have elected only seven new Members to the Legislative
Assembly. Since nine persons were elected, the Applicant argues, the total number of
Members of the Legislative Assembly from Tanzania is eleven and that is contrary to
Article 50 (1).
6. The Applicant has two prayers, to wit:
a) “An order that the elections of a total of 9 persons to be members of the Assembly
conducted by the National Assembly of Tanzania in October, 2006, as averred
in paragraph 4 (e) hereinabove while the tenure of the 2 members elected as per
paragraph 4 (c) above had not ended, was, and is, a nullity and without validity;
b) An order prohibiting the East African Community Assembly to administer oaths/
affirmations of the 9 persons elected by the National Assembly of Tanzania in
64
October, 2006, as averred in paragraph 4 (e) above.”
Paragraphs 2 and 3 of 1st Respondent’s response to the reference aver:
(2) “That the Reference is misconceived and bad in law for it offends the express
provisions of Article 52 of the Treaty of the East African Community.”
(3) “That the Petitioner does not enjoy any Locus standi in this reference.”
7. The 2nd Respondent has also submitted that the Applicant has no locus standi, that is,
the Applicant does not have a legal right to come to Court. Paragraph 12 of the 2nd
Respondent’s response contends:
“Furthermore That the Applicant has no locus standi in the matter of elections
of Tanzania’s Members to the East African Legislative Assembly; to that extent
Applicant’s pleadings disclose no unlawful act on the part of the East African
Community and no infringement of the Treaty within the meaning of Article 30 of
the Treaty”.
8. The nine persons elected in October, 2006, applied for and were granted leave to
appear as Interveners in opposition to the application. In their notice of motion filed
under Article 40 of the Treaty and Rules 17 and 35 of the East African Court of Justice
Rules of Procedure (the Rules), the interveners contend in paragraphs (viii) and (ix)
as follows:
“(viii) As this case is averring that Dr. Norman Sigalla and Mrs. Hulda Stanley Kibacha
are persons who are still members of the East African Legislative Assembly, that the
elections in the National Assembly of Tanzania be repeated so that only 7 people
should be elected instead of nine, thus averring that two of the elected people were
not properly elected, this matter should be determined by way of an election petition
filed in the Tanzania courts pursuant to the provisions of Article 52 (1) of the Treaty
for the Establishment of the East African Community, and Rules 15 and 16 of the East
African Legislative Assembly Election Rules, 2001 made by the National Assembly of
Tanzania in May, 2001.
(ix) This matter is a purely private matter involving two individual former Members
of the 1st East African Legislative Assembly. There is no public interest involved.
Hence the Applicant, Christopher Mtikila, has no locus standi to appear in this matter
as it does not involve him or the public.”
9. At the scheduling conference the parties had three points of agreement and three of
disagreement. The three points of agreement were:
“(1)The Applicant is a citizen of East Africa.
(2) That in March 2006, Hulda Kibacha and Dr. Norman Sigalla were elected into
the East African Legislative Assembly by the National Assembly of the United
Republic of Tanzania.
(3) That in November 2006, the National Assembly of the United Republic of Tanzania
elected nine (9) Members to the East African Legislative Assembly.”
10. The three points of disagreement were:
1) Whether this Court has jurisdiction to entertain this reference.
2) Whether the Applicant has locus standi in this reference.
3) Whether swearing in of the Nine (9) Members elect will result into Tanzania
having eleven (11) Members in the East African Legislative Assembly contrary to
the provisions of the Treaty.
65
The first two points of disagreements are really preliminary objections. It was,
therefore, agreed that the issues of jurisdiction of this Court over the matter in
dispute, and the locus standi of the Applicant be determined first.
11. The Applicant was represented by Mr. Audax Kahendaguza Vedasto, learned
advocate while 1st Respondent had three learned Principal State Attorneys, to wit,
Mr. Matthew Mwaimu, Mr. Joseph Ndunguru, and Mr. Paul Ngwembe. Mr. Wilbert
Kaahwa, learned Counsel to the Community, appeared for the 2nd Respondent. The
interveners were advocated for by Mr. Mabere Marando, learned counsel.
12. Mr. Mwaimu’s contention that prayer 5 (a) of the Applicant of necessity calls upon
this Court to probe whether or not the nine persons elected in October, 2006, are
Members of the Legislative Assembly but, he submitted that, that determination is
the preserve of the High Court of Tanzania under Article 52 (1) of the Treaty. He
referred us to our judgment in Reference No. 1 of 2006, Prof. Peter Anyang’ nyong’o
and Ten Others v. A. G.of Kenya And Two Others and four Interveners. Mr. Mwaimu
also submitted that a person will have locus standi under Article 30 only where the
Court has jurisdiction in terms of Article 27, that is, where the matter before the Court
is one of the interpretation and the application of the Treaty. In this application, the
learned Principal State Attorney contended, there is no issue of interpretation at all.
He asked the matter to be dismissed with costs.
13. Mr. Kaahwa was very brief on locus standi. He contended that the Applicant has
not shown in his pleadings sufficient connection to the electoral process in the
National Assembly. The learned Counsel continued that the Applicant would have
locus standi under Article 30 if he alleged an infringement of the Treaty outside the
electoral process which is vested in an institution of a Partner State. In other words
Mr. Kaahwa was submitting that the Applicant should have invoked the provisions of
Article 52 of the Treaty. He, too, prayed that the reference should be dismissed with
costs.
14. Mr. Marando drew our attention to what he called salient features in this application
which were not pleaded and his two learned friends did not address. He pointed
out that there are two lacunae in the Treaty. That is, the Treaty does not provide
for two matters: One, the life span of the Legislative Assembly itself. The learned
advocate said that the Treaty provides for the tenure of the individual Members of the
Legislative Assembly only. Two, the Treaty does not provide for the process of filling
up of any of the vacancies enumerated in Article 51 (3).
15. Mr. Marando further submitted that prayer 5 (a) of the Applicant requires a
declaration that the election of the nine Members in October, 2006, was a nullity and
without validity. This, he said, is what is referred to in East African jurisprudence as
avoiding an election and that is the business of the High Court of Tanzania and not of
this Court. He pointed out that the lacunae do not entitle the Applicant to the prayers
he seeks in the reference.
16. Mr. Vedasto stated that this Court has jurisdiction as both Respondents, as well as the
Interveners, have not disputed that the Applicant has locus standi under Article 30.
He emphasized that the application is of public interest. Mr. Vedasto contended that
whether or not Dr. Sigalla and Mrs. Kibacha contested the elections and took the dues
which all the Members were given after the dissolution of the Legislative Assembly is
66
immaterial to the operation of the Treaty.
17. Mr. Vedasto went on to say that the case of the Applicant is not to question the
validity of the election of any person but is to point out that there are eleven Members
in the Legislative Assembly from Tanzania instead of nine. He also referred us to
the judgment of this Court in Prof. Anyang’nyong’o where it was said that even in
situations where Article 52 of the Treaty is involved this Court still retains jurisdiction
if there are other issues which do not fall under Article 52.
18. In reply Mr. Mwaimu had nothing to add to what he had submitted earlier on. Mr.
Kaahwa, on the other hand, conceded the existence of the lacunae disclosed by Mr.
Marando but added that the application is not with regard to the lacunae but with
regard to the membership of the Legislative Assembly which is the subject matter of
19. We are of the decided view that the first issue of whether or not this Court has
jurisdiction will determine the matter and the question of locus standi need not
detain us.
20. For the avoidance of doubt we have to point out that in this application it is accepted
that there were elections in the National Assembly in 2001, in March and in October,
2006. So, what is before us is totally different from what was before this Court in
Prof. Anyang’ Nyong’o where the contention was that there was no election at all as
prescribed under Article 50 (1) of the Treaty.
21. Admittedly, in Anyang’ Nyong’o this Court said that it still retains jurisdiction even
where Article 52 of the Treaty is applicable if there are other matters which do not
fall under that Article. But the Court went on to say at page 20 of the type written
judgment that:
“In paragraph 29 and 30 of the reference, however, the claimants have referred to
the Court two other issues, which we consider to be the core and material pleadings
for purposes of the reference. It is those pleadings that disclose the special causes of
action, which evoke this Court’s jurisdiction under the Treaty. And it is only those
pleadings that will be subject of adjudication in this reference.”
22. Those two paragraphs provide as follows:
(29) It is the contention of the claimants that the whole process of nomination and
election adopted by the National Assembly of Kenya was incurably and fatally flawed
in substance, law and procedure and contravenes Article 50 of the East African
Community Treaty in so far as no election was held nor debate allowed in Parliament
on the matter.
(30) The claimants also contend that any such rules that may have been invoked by
the Kenyan National Assembly which do not allow election directly by citizens or
residents of Kenya or their elected representative is null and void for being contrary
to the letter and spirit of the Treaty.”
No such complaints have been made in this application which would invoke this
Court’s jurisdiction.
23. As for Mr. Marando’s submission we agree with Mr. Kaahwa that the application is
not with regard to the lacuna but with regard to the membership of the Legislative
Assembly. The Applicant’s complaint is that: The tenure of Dr. Sigalla and Mrs.
Kibacha is five years and that they are still Members of the Legislative Assembly until
67
sometime in March, 2011, and, so, last October the National Assembly should only
have elected seven Members. Since nine Members were elected, then there are eleven
Members from Tanzania. Hence the Applicant in his prayer 5 (a) wants us to declare
those elections null and void.
24. The Applicant is saying that of the nine persons elected in October, 2006, two of them
are not Members of the Legislative Assembly. It is glaringly clear to us that what
the Applicant is saying can be appropriately encapsulated in the words forming the
heading of Article 52 of the Treaty: “Questions as to Membership of the Assembly”.
This is true of at least two persons out of the nine who were elected in November,
2006. Obviously, this is the province of the High Court of Tanzania and not of this
Court.
25. As Mr. Marando properly pointed out, Rule 15 of the East African Legislative Assembly
Election Rules (the Tanzania Election Rules), which the Applicant produced in his
list of authorities, provides:
“Pursuant to the provisions of Article 52 (1) of the Treaty, the election of the candidate
as a Member of the East African Legislative Assembly may be declared void only on
an election petition.”
Rule 16 goes further to articulate that:
“The procedure, jurisdiction and the grounds for declaring void the election of such
member, shall be the same as provided by law for election petitions in respect of
members of the national parliament.”
26. As we have pointed out earlier, the Applicant is striving to have Dr. Sigalla and Mrs.
Kibacha to be recognized as Members of the Legislative Assembly and to drop two out
of the nine persons whose names have been submitted to the Legislative Assembly.
In practical terms it means that Dr. Sigalla and Mrs. Kibacha are to substitute two
persons on the list of Members from Tanzania which has been submitted to 2nd
Respondent.
27. We are at one with Mr. Mwaimu when he referred us to page 20 of the judgment of
this Court in Prof. Anyang’ nyong’o where it was said:
“We agree that if the only subject matter of the reference were those circumstances
surrounding the 3rd substitution of the interveners for the said four claimants, this
Court would have no jurisdiction over the reference.”
28. In that reference four claimants averred that they had been properly nominated
by their political parties within NARC but that the Chief Whip unilaterally and
pompously sent in his list of names which excluded the four names. The Court said
that if it was only called upon to substitute names, that is, act as if there was an election
petition, the Court would not have jurisdiction. That would have been properly the
domain of the Kenyan Courts. That is also the case with regard to this reference: the
declaration that two persons were improperly elected and that they are not Members
of the Legislative Assembly is the domain of the High Court of Tanzania and not this
Court.
29. We, therefore, hold that this Court has no jurisdiction to entertain this application
which seeks to annul the elections held by the National Assembly in October, 2006.
We allow the preliminary objection raised and dismiss the reference with costs for
one advocate for each Respondent.
****
The East African Law Society, The Law Society of Kenya, The Tanganyika Law
Society, The Uganda Law Society And The Zanzibar Law Society
And
The Attorney General of the Republic of Kenya, the Attorney General of the
United Republic of Tanzania, the Attorney General of the Republic of Uganda, the
Mulenga V.P., Kasanga Mulwa and Arach -Amoko JJ.

September 1, 2008
Cessation of sovereignty - Justiciability - Sovereign right of Partner States to amend

the Treaty - People’s participation- Prospective annulment- Whether the Treaty
amendment process was proper, carried out in good faith and could be stopped.
Articles: 5, 7 (a), 26, 30, 38(2) 150 of the Treaty for Establishment of the East African
Community.
On 14th December 2006, the Summit of the Heads of State of the then three Partner
States in the East African Community considered and adopted amendments to
several articles of the Treaty for Establishment of the East African Community.
The amendments appear to have been instigated by an interim order issues by the
EACJ restraining the Clerkto the East African Legislative Assembly and the Secretary
General of the East African Community from recognizing 9 persons as duly elected
by the National Assembly of Kenya to the East African Legislative Assembly. By
19th March 2007, the Partner States had deposited their instruments of ratification
on 16th March 2007; the said amendments were published in the East African
Community Gazette.
The five applicants jointly challenged the legality of the amendments to the Treaty
and sought declarations that the amendment process infringed provisions of the
Treaty and norms of international law and was of no legal effect.
Held:
1. Residents of the Partner States are vested with the right to access this Court and to
challenge any form of infringement of provisions of the Treaty under Article 30.
2. The Partner States bound themselves to abide by the procedure specified in Article
150 in the process of amending the Treaty; they cannot therefore amend the Treaty
in any other way. To that extent, the Partner States agreed to cede a degree of their
respective sovereignty. Thus, the question whether the amendment process amounts
to an infringement of the Treaty is justiciable and cannot be barred on the ground of
The East African Law Society and others v AG Kenya and others
69
sovereignty of the Partner States.

3. The submission of proposed amendments of the Treaty to the Summit by the EAC
Secretary General within five days after his communication to the Partner States was
not an infringement of Article 150 (5) of the Treaty.
4. The Partner States did not engage in any serious widespread consultations on the
amendments and failure to carry out consultations outside the Summit, Council and
the Secretariat was inconsistent with a principle of the Treaty and constituted an
infringement of the Treaty.
5. The lack of people’s participation in the impugned amendment process was
inconsistent with the spirit and intendment of the Treaty in general, and it constituted
and infringement of principles and provisions in Articles 5(3) (g), and 7(1) (a).
i). The purpose for which Article 26 was amended constituted infringement of
Article 38(2) of the Treaty. Though the infringement was not a conscious one, the
infringement should not recur.
ii). Infringement of the Treaty had no significant effect on the requirement of
involvement of people in the Treaty amendment process and shall have prospective
application.
Cases cited:
Barcelona Traction, Light and Power Company Limited (Belgium vs.Spain) 2nd Phase
(1970) I.C.J.Reports
Benito Ang v.Judge R.G. Quilala and others: [A.M. No. MTJ-03-1476] February 4, 2003
CalistMwatela and others v. Secretary General of the EAC, Reference No.1 of 2005
Prof. Peter Anyang’ Nyong’o & 10 others v. The AttorneyGeneral of Kenya & 5 others,
EACJ, Reference No. 1 of 2006
Judgment
1. On 14th December 2006, the Summit of the Heads of State of the then three Partner
States in the East African Community (“the Summit”) considered and adopted
amendments to several Articles of the Treaty for the Establishment of the East African
Community (“the Treaty”). On subsequent diverse dates, the three Partner States
severally ratified the said amendments to the Treaty and deposited their respective
instruments of ratification with the Secretary General of the East African Community.
The last of the instruments of ratification was so deposited on 19th March 2007.
Meanwhile, on 16th March 2007, the said amendments were published in the East
African Community Gazette.
2. In this reference, the five applicants jointly challenge the legality of the said amendments
to the Treaty and seek declarations that the amendment process infringed provisions
of the Treaty and norms of international law and was of no legal effect. They also seek
diverse consequential orders.
Background
3. The facts leading to the reference are generally not in dispute. On 27th November
2006, this Court delivered a ruling granting an interim order in the case of Prof. Peter
70
Anyang’ Nyong’o & 10 others vs. The Attorney General of Kenya & 5 others Reference
No. 1 of 2006, restraining the Clerk to the East African Legislative Assembly and the
Secretary General of the East African Community from recognizing 9 persons named
in the order as duly elected by the National Assembly of Kenya to the East African
Legislative Assembly (EALA) or permitting them to participate in any function of the
EALA until the final determination of the reference. In that reference, the applicants
challenged the legality of nomination of the 9 persons to the EALA on the ground
that the National Assembly of the Republic of Kenya did not elect them in accordance
with Article 50 of the Treaty. In apparent reaction to the Court’s ruling, the Council
of Ministers of the East African Community (“the Council”), at its meeting on
28thNovember 2006, considered the implications of the interim order and decided
to recommend to the Summit that the matter be referred to the Sectoral Council on
Legal and Judicial Affairs to study the jurisdiction of this Court and other related
matters and advise on the way forward.
4. In a communiqué issued at the conclusion of its meeting at Arusha, on 30th November
2006, the Summit – “Endorsed the recommendation of the Council of Ministers to
reconstitute the East African Court of Justice by establishing two divisions, a court
of First Instance with jurisdiction as per present Article 23 of the Treaty and an
Appellate Division with appellate powers over the Court of First Instance.
Directed that the procedure for the removal of Judges from office provided in the
Treaty be reviewed with a view to including all possible reasons for removal other
than those provided in the Treaty.
Directed that a special Summit be convened very soon to consider and to pronounce
itself on the proposed amendments of the Treaty in this regard.”
5. This sparked off a flurry of activity, the highlights of which are
»» An extraordinary meeting of the three Attorneys General of Kenya, Tanzania and
Uganda held on 7th December 2006, which considered draft amendments to the
Treaty in line with the said communiqué and recommended to the Council that
the same be approved and submitted to the Summit pursuant to Article 150 for
consideration and adoption;
»» A meeting of the Council held at Arusha on 8th December 2006, during which
the draft amendments to the Treaty approved by the meeting of the Attorneys
General of the Partner States was considered and approved;
»» Submission of the proposed amendments to the Partner States by the Secretary
General of the East African Community (“the Secretary General”) on 9th
December 2006 and the respective replies dated 11th, 12th and 13th December
2006;
»» The adoption of the amendments and signing of the Instrument of Adoption by
the Summit on 14th December 2006;
»» The deposit with the Secretary General of the instruments of ratification of the
amendments by the Governments of Kenya on 8th January 2007, of Uganda on
26th February 2007 and of Tanzania on 19th March 2007.
71
The Amendments
6. Although this reference does not relate to the substance of the amendments, it is
useful to note at least their import, which is –
»» To restructure the Court into two divisions, i.e. a First Instance Division and an
Appellate Division; (Article 24);
»» To include, among the grounds for removing a judge of the Court from office, the
following –
“in the case of a judge who also holds judicial office or other public office in a Partner
State, [if the judge] – is removed from that office for misconduct or due to inability to
perform the functions of the office for any reason;
or resigns from that office following allegation of misconduct or of inability to
perform the functions of the office for any reason; if the judge is adjudged bankrupt
or convicted of an offence involving dishonesty or fraud or moral turpitude under
any law in force in a Partner State.”
And to provide for suspension of a judge who is under investigation for removal or is
charged with such offence; (Article 26);
»» To limit the Court’s jurisdiction so as not to apply to “jurisdiction conferred by
the Treaty on organs of Partner States”; (Art. 27 & 30)
»» To provide time limit within which a reference by legal and natural persons may
be instituted, (Article 30);
»» To provide grounds on which appeal may be made (Article 35A); and
»» To deem past decisions of the Court and existing judges to be decisions and judges
of the First Instance Division respectively. (Article 140 A).
Subject matter of the Reference

7. The substance of the reference as pleaded by the applicants in paragraph 17 of the
reference reads –
“17.In the premises, the subject matter of this reference is that –
a) The purported declaration of the Summit, contained in the Communiqué of
30th November 2006, was not encapsulated in an East African Gazette Notice, as
expressly stipulated by Article 11 of the Treaty, and therefore the decision has no
legal effect.
b) The explicit time-lines, as well as the elaborate procedures, for treaty amendment,
expressly stipulated in Article 150 of the Treaty, were and continue to be infringed,
and the said amendments therefore have no legal effect. In particular –
1) There was no written proposal from either a Partner State or the Council of
Ministers as provided in Article 150(2) and (3);
2) The Secretary General of the Community did not communicate the amendments
in writing to the Partner States as provided in Article 150(3);
3) Further the 30-day notice period prescribed in Article 150(3) was not observed;
4) The mandatory 90-day period for Partner States’ comments prescribed under
Article 150(4) and (5) was not observed;
5) There were no written comments from the Partner States as stipulated in
Article 150(5);
c) The purported ratification of the amendments by the Republic of Kenya, the
72
Republic of Uganda and the United Republic of Tanzania by their respective
Cabinets are an infringement of Article 150(6); further they are unconstitutional,
illegal and therefore of no legal effect;
d) In attempting or purporting to amend the Treaty while the Court was still seized
of Treaty (sic) Reference Application Number 1 of 2006, the Partner States and the
Secretariat of the Community infringed Articles 8(1)(c) and 38(2) of the Treaty.
As a consequence the entire purported process of treaty amendment is vitiated
and of no legal effect;
e) The Summit, Council of Ministers, Office of the Secretary General and the 3
Partner States’ Attorneys General excluded all the other organs of the Community,
the Partner States governments and more importantly, the people and registered
interest groups of East Africa in the irregular and rushed Treaty amendment
process. This infringes both the Preamble and Articles 1, 5, 6, 7, 8, 9, 11, 38 and
150 of the Treaty.”
8. We should observe at the outset that although the aforesaid pleading was not amended
and none of the averments therein was otherwise withdrawn, learned counsel for the
applicants addressed the Court only on the averments in paragraphs 17 (b) 4) and
17(e) in the submissions under issue no.2, and on those in paragraph 17(d) in the
submissions under issue no.3. No evidence was adduced in support of, and learned
counsel did not canvass the averments in paragraph 17(a), 17(b) 1), 2), 3) and 5)
and 17(c) obviously because they were inconsistent with the available evidence, and
no counter evidence to support them was adduced. We shall therefore regard those
particular averments as abandoned.
9. Although the reference is stated to be made under twelve articles of the Treaty, the
only article under which any legal or natural person may bring such a reference is
article 30 of the Treaty. The five applicants are legal persons. The 1st applicant is a
Company limited by Guarantee, and registered in Tanzania as such and in Kenya
and Uganda as a Foreign Company. Its membership consists of individual lawyers
as well as five national associations of lawyers of Kenya, Tanzania, Uganda, Rwanda
and Zanzibar. The 2nd, 3rd and 4th applicants are corporate entities established by
national statutes of Kenya, Tanzania and Uganda respectively; and the 5th applicant
is a registered society under Zanzibar legislation.
10. The four respondents are cited in the reference in their respective representative
capacities, representing the Republic of Kenya, the United Republic of Tanzania, the
Republic of Uganda and the East African Community, respectively.
11. The reference was filed in the Court Registry on 18th May 2007 and was followed
by separate responses from all the respondents. Upon conclusion of the pleadings
and in pursuance of rule 52 of the Rules of Procedure, the Court held a scheduling
conference on 2nd November 2007 during which the parties inter alia framed the
following issues for determination by the Court, namely –
1) Whether the reference is properly before the Court;
2) Whether the process of amending the Treaty was proper and lawful;
3) Whether the said amendments were carried out in good faith;
4) Whether the amendments as carried out can be stopped; and
5) Whether the amendments will strengthen the Community.
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12. Hearing did not proceed promptly due to several adjournments initially with a view
to settlement and subsequently because of post-elections problems in Kenya. Hearing
finally commenced on 7th May 2008 with oral submissions of counsel, the evidence
relied on by all the parties being by affidavits filed along with the pleadings.
13. Prof. Fredrick Ssempebwa the learned lead counsel for the applicants made
submissions on all the framed issues. He was assisted by Mr. Alex Mgongolwa
and Mr. Donald Deya who shared the submissions in reply to submissions for the
respondents. Learned counsel for the respondents shared the framed issues among
themselves. Mr. Wilbert Kaahwa, learned Counsel to the Community who appeared
for the 4th respondent argued issues no, 1 and no. 5 on behalf of all the respondents.
Mr. Anthony Ombwayo, learned counsel for the 1st respondent, Mr. Henry Oluka,
learned counsel for the 3rd respondent, and Mr. Joseph Ndunguru counsel for the
2nd respondent, did likewise respectively on issues no. 2, no. 3, and no. 4.

14. The first framed issue, namely “Whether the reference is properly before the Court”
could have been taken as a preliminary objection, but the parties argued it along
with the rest of the issues. Primarily, it arose from the responses of the 1st and 3rd
respondents. The former pleaded that the subject matter of the reference, being the
result of a decision of one organ of the Community, was not subject to review by
this Court under Article 30. The latter pleaded that the reference was incompetent
and misconceived because there was no dispute amongst the parties to the Treaty.
Additionally, the 2nd and 4th respondents pleaded that under international law, the
applicants were not competent to challenge the sovereign right of the Partner States
to amend the Treaty to which they were parties.
15. Learned counsel for the respondents explained that the contention that the reference
was not properly before the Court was not in respect of the Court’s jurisdiction or
competence to determine the reference, but rather it was in respect of the applicants’
lack of capacity to bring the reference to court. On the one hand he submitted that it
is a trite principle under international law, that the making of treaties, as well as the
amendment thereof, is a sovereign function and a preserve of states as the contracting
parties. The individual subjects of the contracting states have neither a role to play in
the function nor a right to challenge the execution of the function by the contracting
states. In the instant case the right to amend the Treaty by agreement of all the Partner
States was reiterated under Article 150. He maintained that the applicants had no
capacity to challenge the Partner States in the exercise of that right.
16. Secondly, learned counsel submitted that the reference was not properly before this
Court because it lacked one of the essential elements of a reference under Article 30
of the Treaty. According to learned counsel, a reference is properly before this Court
under that article only if –
»» the applicant is a resident of a Partner State;
»» the subject matter of the reference is “an Act, regulation, directive, decision or
action of a Partner State or of an institution of the Community”; and
»» the ground of the reference is that the challenged subject matter is an infringement
of a provision of the Treaty or is otherwise unlawful.
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17. He maintained that what is envisaged under the second requirement is not something
done or made by the Partner States together as contracting parties or by an organ of
the Community. According to learned counsel, what is envisaged is what is done or
made by a single Partner State or an institution of the Community, which is unlawful
or an infringement of the Treaty. Learned counsel submitted that in the instant case,
the second requirement was not satisfied, in as much as the subject matter of the
reference was not an Act, regulation, directive, decision or action of a single Partner
State or of an institution of the Community.
18. Learned counsel urged us to interpret the provisions of Article 30 of the Treaty
strictly, and not to construe them as impugned on the sovereignty of the Partner
States; emphasizing that under that article, only an Act, regulation, directive,
decision or action of a single Partner State or an institution of the Community may
be challenged; but not that of an organ of the Community. He argued that to the
extent that in this reference the applicants challenge the legality of the decision of the
Summit to amend the Treaty, the reference does not fall within the ambit of Article 30
and is therefore not properly before this Court. He submitted that the decision of this
Court in Callist Mwatela and others vs. Secretary General of the EAC, Reference No.1
of 2005, which the applicants rely on, is not a proper authority because the pertinent
question, whether a directive, decision or action of an organ of the Community is
justifiable under Article 30 was not raised and this Court did not pronounce itself on
it.
19. While conceding that the making of a treaty, as well as the amendment thereof, is a
sovereign function of state, learned counsel for the applicants, submitted that each
treaty must be interpreted in the context of its objectives. He stressed that the main
objective of the Treaty in the instant case is the phased integration of the Partner
States into a Customs Union, a Common Market, a Monetary Union and ultimately
a Political Federation. He invited the Court to take into consideration the historical
context of the Treaty when interpreting its provisions. In that regard he recalled that
the past failed East African Community was not people centered and noted that,
in contrast, the Treaty provides in Article 7(1) (a), that the operational principles
for achieving its objectives shall include “people centered and market driven co-
operation”. Counsel submitted that in furtherance of that principle, the Treaty
confers rights on the people of East Africa and permits them to enforce those rights
through this Court. In so doing and in binding themselves under Article 150 as to the
procedure for amending the Treaty, the Partner States surrendered some degree of
sovereignty.
20. With regard to the scope of Article 30, learned counsel recalled the Court’s duty
under Article 23, to ensure adherence to law in the interpretation and application of
the Treaty, and the empowerment of natural and legal persons in East Africa under
Article 30, to challenge any illegality in the application of the Treaty by a Partner State
or institution of the Community, and submitted that Article 30 cannot be construed
as excluding from such challenge, illegality by an organ of the Community.
He invited the Court to apply the purposeful approach in interpreting the article
and to hold that any Act, regulation, directive, decision or action by an organ of the
Community is within the ambit of Article 30 and may be challenged under it. Learned
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counsel cited as authority for that proposition, the decision of this Court in Callist
Mwatela and others vs. Secretary General of the EAC, (supra), where the decisions/
directives of the Council of Ministers, an organ of the Community, were successfully
challenged under Article 30.
21. In reply to the submissions by the respondents’ counsel, learned counsel for the
applicants further pointed out that the two main arguments in support of the
respondents’ contention contradicted each other. Whereas on the one hand the
respondents argued that the reference was incompetent for purporting to challenge
the sovereign function of the Partner States, on the other hand they argued that it was
incompetent for purporting to challenge the decision and action of an organ of the
Community. Learned counsel maintained that the reference was brought in respect
of decisions and actions of the Partner States and were therefore properly before the
court as envisaged under Article 30.
Conclusion on Issue No.1

22. In this reference, the applicants do not challenge the sovereign right of the Partner
States to amend the Treaty. They only contend that under Article 150 of the Treaty
the Partner States bound themselves to follow a prescribed procedure in exercising
that right and that a deviation from that procedure constitutes an infringement of the
Treaty. They argue that in effecting the amendments in issue in the instant case, the
prescribed procedure was not complied with, and that consequently the amendments
amounted to an infringement of the Treaty. We agree in as much as the Partner States
bound themselves to abide by a specified procedure in the process of amending the
Treaty, they cannot amend the Treaty in any other way. To that extent the Partner
States agreed to cede a degree of their respective sovereignty. In our view, therefore,
the question whether the amendment process in issue in this reference amounts to
an infringement of the Treaty is justiciable and cannot be barred on the ground of
sovereignty of the Partner States.
23. Secondly, the applicants do not claim to have any inherent right to make this reference
questioning the manner in which the Partner States exercised their sovereign right to
amend the Treaty. They, as residents of the Partner States, rely on the right the Treaty
vests in them under Article 30, which reads –
“ Reference by Legal and Natural Persons 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 grounds that such Act, regulation,
directive, decision or action is unlawful or is an infringement of the provisions of the
Treaty.”
24. Ordinarily at international law, a treaty between or among states, like any contract,
protects interests of or creates rights for the parties thereto and imposes duties and
obligations on the parties to it. Neither another state that is not a party, nor a legal
or natural person, may directly claim any interest or right under it, notwithstanding
that other state or person derives benefit from implementation and operation of the
treaty. However, nothing prevents the state parties to a treaty to vest in any person or
other state an enforceable right.
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25. It is clear from the provision of Article 30 that the residents of the Partner States are
vested with the right to access this Court for the purpose of challenging any form of
infringement of provisions of the Treaty. Several provisions in the Treaty lend weight
to the view that this was a deliberate provision to ensure that East Africans for whose
benefit the Community was established participate in protecting the integrity of the
Treaty. The following excerpts from the Treaty in particular, stand out to illustrate
that deliberate intent. First, in the Preamble to the Treaty, the fourth recital recalls
and highlights that one of “the main reasons that contributed to the collapse of the
(previous) East African Community” in 1977, was “lack of strong participation of the
private sector and civil society in the co¬operation activities”; and the eleventh recital
records that the parties to the Treaty “are resolved to create an enabling environment
in all the Partner States in order to attract investments and allow the private sector
and civil society to play a leading role in the socio-economic development activities”
Secondly, Article 7 provides –
“The principles that shall govern the practical achievement of the objectives of the
Community shall include: people-centered and market-driven co-operation;”
26. In our view, therefore, it would be a negation of that deliberate intent to bar the
reference on the ground that the applicants had no capacity to bring a reference
challenging a sovereign function of the Partner States.
27. Lastly, we are not persuaded by the respondents’ urging that we give to Article 30, a
narrow interpretation that excludes from the application of the Article, infringement
of the Treaty by an organ of the Community. With due respect to learned counsel, it
seems to us that such a restrictive interpretation is not based on a sound ground. It
is only based on the fact that no mention of infringement of the Treaty by an organ
of the Community is made in Article 30. It is noteworthy that the Treaty provides
for two other similar references to this Court. Article 28 authorises a Partner State to
make a similar reference in respect of a failure to fulfill an obligation under the Treaty
or of an infringement of a provision thereof on the part not only of another Partner
State or an institution of the Community but also of an organ of the Community. On
the other hand, Article 29 empowers the Secretary General, subject to direction by
the Council, to make a similar reference to the Court in respect of such a failure or
infringement by a Partner State only.
28. We note the disparity in the three articles depending on who is responsible for the
alleged failure or infringement, but having regard to the purpose of the provisions,
namely to ensure compliance with provisions of the Treaty and to provide for
empowerment of inter alia any resident to seek judicial adjudication where there
is allegation of non-compliance, we are inclined to the view that a restrictive
interpretation would defeat that purpose.
29. We agree that in Callist Mwatela and others vs. Secretary General of the EAC, (supra)
the subject matters of the reference were decisions and actions of organs of the
Community, but no one raised the point of their justifiability. In our view, however,
that is not a substantial point. Legally the organs are not corporate entities, but are
components of the Community, which is the corporate body. Ordinarily, an act of an
organ in discharging its functions is an act of the corporate Community. However, in
areas where a function of the Partner States has not been ceded to the Community,
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an organ may discharge the function in the context of “the Partner States acting
together.”
30. In the instant reference, the alleged infringement is in essence not the diverse
individual decisions, directives or actions of the Summit or other organs of the
Community set out in the reference. The alleged infringement is the totality of the
process of the Treaty amendment, which amendment was, and can only be made
by the parties to the Treaty, namely the Partner States, acting together through the
organs of the Community. It follows that if in the amendment process the Treaty was
infringed, it was infringed by the Partner States. The reference therefore cannot be
barred on the ground that its subject matter are decisions and actions of organs of the
Community.
For the reasons we have set out, we find and hold that the reference is properly before
this Court. Accordingly we answer issue no.1 in the affirmative.

31. The second issue revolves around the construction of Article 150 which reads –
1) “Amendment of the Treaty
2) The Treaty may be amended at any time by agreement of all the Partner States.
3) Any Partner State or the Council may submit proposals for the amendment of this
Treaty.
4) Any proposals for the amendment of this Treaty shall be submitted to the Secretary
General in writing who shall, within thirty days (30) of its receipt, communicate
the proposed amendment to the Partner States.
5) The Partner States which wish to comment on the proposals shall do so within
ninety days (90) from the date of the dispatch of the proposal by the Secretary
General. After the expiration of the period prescribed under paragraph 4 of this
Article, the Secretary General shall submit the proposals and any comments
thereon received from the Partner States to the Summit through the Council.
6) Any amendment to this Treaty shall be adopted by the Summit and shall enter
into force when ratified by all the Partner States.”
32. As noted earlier in this judgment, Issue No.2 is: “Whether the process of amending
the Treaty was proper and lawful”. The thrust of the submissions by learned counsel
for the applicants on this issue is that the amendment process was flawed in two
respects, namely failure to abide by the mandatory time-frame prescribed under
Article 150(4) and (5), and absence of adequate or any consultation of “the people”
on the proposals for amendment, as envisaged under the Treaty.
33. Learned counsel contended that whether the proposal is by all the Partner States
together or by any one of them or the Council, it must be processed through the stages
set out in Article 150 under paragraphs (2) to (6) because they are all mandatory. He
stressed in particular that the period of 90 days from the time the Secretary General
communicates the proposal to the Partner States must expire before the proposal with
the comments from the Partner States is submitted to the Summit through Council,
even if the Secretary General receives the comments well before expiry of that period,
as happened in the instant case. According to counsel, the 90 days period must not be
abridged because it was prescribed for the purpose of allowing wide consultation on
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any proposed amendment, in order to maintain the whole Treaty as people-centered.
In this regard, he invited the Court to take judicial notice of the extensive consultation
that was carried out on the proposal to “Fast-track Political Federation”, and the on-
going wide consultation on extension of the Court’s jurisdiction.
34. On the basis of his analysis of Article 150, learned counsel argued that although
in the communication to the Partner States and in the submission to the Summit
the Secretary General purported to do so in accordance with Article 150(4) and (5)
respectively, the submission of the proposed amendments to the Summit before expiry
of the prescribed 90 days was an infringement of Article 150(5). He argued further
that the undisputed fact that the amendment process from initiation to conclusion
took only a few days, is sufficient proof that the consultations envisaged under the
Treaty, were not carried out, and the Treaty was thereby infringed.
35. Learned counsel for the respondents submitted that the Treaty may be amended in
one of two different ways. To put it in his own words, he said –
“It is trite law that a treaty can be amended in two modes. The first mode of amending
a treaty is by agreement. This is an agreement by the Partner States to amend the
provisions of the treaty. The second mode of amendment is as provided for under
Article 150(2) to (5) of the Treaty…………… that is a set out procedure for
amendment of the Treaty where there is no agreement.
36. He submitted that the first mode was recognized at international law and was
embodied in Article 39 of the Vienna Convention on the Law of Treaties, (“the Vienna
Convention”) and was reiterated in Article 150(1) of the Treaty. Initially, learned
counsel contended that in the instant case the Partner States amended the Treaty
by agreement, applying the first mode of amendment, when in the communiqué
at the Summit meeting of 30th November 2006, the Heads of State endorsed the
recommendations of the Council and issued conclusive directives –
»» to reconstitute the East African Court of Justice into two divisions;
»» to review the procedure for removal of judges from office; and
»» to convene a special Summit to consider the amendments.
37. In the course of his submissions, however, without conceding that the communiqué
did not constitute an effective amendment of the Treaty, learned counsel accepted
that in addition to the agreement of the Partner States to amend the Treaty that is
evidenced by the communiqué, there was compliance with the procedure set out in
paragraphs (2) to (5) of Article 150 and in particular stressed that paragraphs (4) and
(5) were not infringed.
38. 38. The substance of learned counsel’s argument in regard to the timeframe set out
in paragraphs (4) and (5) of Article 150 may be paraphrased thus: Where one act
is required to be done within a set period and a second act is required to be done
after expiry of the said set period, for purposes of doing the second act, the set
period is deemed to expire when the first act is done. Learned counsel maintained
that in the instant case, when the Partner States submitted their comments on the
proposed amendments within the set period of 90 days, for purposes of the next step
of submitting the proposed amendments with the comments to the Summit, the 90
days period was deemed to lapse upon the Secretary General receiving the last of the
comments from the Partner States.
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39. Consequently, according to learned counsel, the submission of the proposed

amendments with the comments well before the actual expiry of 90 days did not
constitute an infringement of Article 150(5) of the Treaty. In support of his argument,
learned counsel referred to the cases of Alida Singh vs. Vanel Singh (1956) RD-SC 83;
Jaramogi Oginga Odinga and others vs. Zacherus Chesoni Application No.602 of 1992
(K) and David Wakairu Murathe vs. Samuel Macharia Civil Appeal No.171 of 1998
(K), which we did not find helpful.
40. Furthermore, learned counsel opposed the applicants’ proposition that the Secretary
General has to await the actual expiration of 90 days before the submission to the
Summit even after all the comments are received. In his view such interpretation
renders the provision absurd. Article 150 does not provide for mandatory or any
consultation and therefore requiring the Secretary General after receiving all the
comments to postpone submission of the same for further action would be pointless
and absurd.
Consideration and conclusion of Issue No.2

41. There are two components in issue no.2, which in the interest of clarity we shall
consider separately. We shall first consider whether the amendment process infringed
the Treaty by reason of noncompliance with Article 150, and then consider if it
infringed the Treaty in any other way.
42. We should mention at the outset that we do not agree with the submission by counsel
for the respondents that Article 150 provides for two modes of amending the Treaty. In
our view the provision in Article 150(1) is a general provision reiterating the position
at international law as reflected in Articles 39 and 40 of the Vienna Convention on
the Law of Treaties (Vienna Convention). Article 39 substantially provides that a
treaty may be amended by agreement between the parties to it. That indicates the
capacity to amend not the procedure for amending. Article 40 makes that quite clear
by providing that unless otherwise provided in the treaty –
“Any proposal to amend a multilateral treaty as between all the parties must be
notified to all the contracting States, each one of which shall have the right to take
part in:
a) the decision as to the action to be taken in regard to that proposal
b) the negotiation and conclusion of any agreement for the amendment of the treaty.”
43. In the instant case, the Treaty does not provide otherwise. Rather in paragraphs (2)
to (6) of Article 150 it makes provisions for the parties to it, i.e. the Partner States, to
participate in the amendment process. As we noted earlier in this judgment, the bone
of contention is whether the provisions in those paragraphs were complied with in
making the impugned amendments.
In view of the abandoned pleadings we alluded to earlier in this judgment, we need
focus only on the provisions in two of the paragraphs, namely paragraphs (4) and (5)
of Article 150.
44. Paragraph (4) provides that the Partner States wishing to comment on proposed
amendments shall do so within 90 days from the date the proposals were dispatched
to them. Paragraph (5) provides that after expiration of that period (90 days), the
Secretary General shall submit the proposed amendments, with any comments
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thereon, to the Summit through the Council.
45. It is not in dispute that the Secretary General submitted the proposed amendments to
the Summit long before expiry of the period of 90 days from the day he communicated
them to the Partner States. It is indeed recorded in the Report of the 4th Extraordinary
Meeting of the Summit held on 14th December 2006 that pursuant to Article 150 of
the Treaty, the Summit received the proposed amendments with the comments, not
through the Council, but directly from the Secretary General at that meeting. That
was only 5 days after his communication to the Partner States, and therefore well
before expiration of 90 days’ period.
46. We have given anxious consideration to the opposing arguments on the interpretation
to be placed on the expression “After the expiration of the period prescribed under
paragraph 4 of this Article” appearing in paragraph (5) of Article 150. Counsel for the
applicants urged that we must give it its plain ordinary meaning that translates to: “after
expiration of 90 days”, which is the period prescribed under paragraph 4. However,
we cannot overlook the force of the argument by counsel for the respondents that to
construe the paragraph as requiring the Secretary General, in mandatory terms, to
await the expiry of 90 days, could lead to unreasonable if not absurd result, where the
Secretary General has received the comments from all the Partner States well ahead
of the expiry of that period, as happened in the instant case.
47. The Vienna Convention sets out international rules of interpretation of treaties.
Article 31 that comprises the General Rule of Interpretation 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.
2. The context for the purpose of the interpretation of a treaty shall comprise, in
a) Any agreement relating to the treaty which was made between all the parties in
b) Any instrument which was made by one or more parties in connection with
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 the relations between the
parties.
4. A special meaning shall be given to a term if it is established that the parties so
intended.”
48. Article 32 then provides that where, in interpreting a treaty, the application of
Article 31 leaves the meaning ambiguous or obscure or leads to a result which is
manifestly absurd or unreasonable, recourse may be had to supplementary means of
interpretation including the preparatory work of the treaty and the circumstances of
its conclusion.
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49. Taking into account the said general principle of interpretation enunciated in Article
31 of the Vienna Convention we think that we have to interpret the terms of the
Treaty not only in accordance with their ordinary meaning but also in their context
and in light of their objective and purpose. Primarily we have to take objective of the
Treaty as a whole, but without losing sight of the objective or purpose of a particular
provision. In that context, in our view, the objective and purpose of Article 150 is to
stress that the Treaty, as a contract binding on all the Partner States, may be amended
only if all the Partner States agree; and to regulate the procedure for processing the
amendments up to conclusion.
50. With due respect to learned counsel for the applicants, we are not persuaded by his
argument that the purpose of prescribing the period of 90 days in paragraph (4) is to
provide for the period that every Partner State must spend undertaking unspecified
consultations. When the Court sought from him clarification, he asserted that the
expression “After the expiration of the period prescribed in paragraph 4” was put
there for a purpose and he went on to say –
“It is in the context of the whole Treaty which is people-centered … So, our contention
is that this is the period that is allowed for consultation. In actual fact, the consultation
may not take place, but this was the purpose.”
51. That answer exposes how the interpretation he urged for could lead to absurd results.
In our view, the purpose of paragraph (4), as stated in the paragraph itself, is to limit
the time for commenting on proposed amendments by any Partner State wishing to
do so. In construing paragraph (5) therefore, it cannot be correct to transform that
purpose into one of prescribing a mandatory period for unspecified consultations.
The clear core objective and purpose of paragraph (5) on the other hand is to
direct that the Secretary General shall submit the proposed amendments with the
comments from the Partner States, if any, to the Summit. It appears to us that the
cross reference to the period prescribed under the preceding paragraph was made
upon a presupposition of the Partner States taking the whole period of 90 days to
comment. In our view it does not cover the scenario where the Partner States take a
shorter period to comment. We think it is more reasonable to conclude, as we hereby
do, that paragraph (5) does not expressly or impliedly require the Partner States to
carry out any consultations, nor does it expressly or impliedly require the Secretary
General to hold the proposed amendments and comments thereon received from
Partner States until expiration of the 90 days. The correct construction must be that
the provision directs the Secretary General to submit them to the Summit not later
than the expiry of that period.
52. Accordingly, we find that the submission of the proposed amendments to the Summit
by the Secretary General within 5 days after his communication to the Partner States
was not an infringement of paragraph (5) of Article 150 of the Treaty specifically.
53. We now turn to consider if by reason of failure to carry out wide consultations on the
proposals for the amendments, the process constituted an infringement of the Treaty
in any other way. It is useful at this point to recall the sequence of the critical events
in the process.
54. Pursuant to the Summit communiqué of 30th November 2006, an Extraordinary
Meeting of the Attorneys General held on 7th December considered and concluded
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the draft amendments, which it recommended the Council to approve and submit to
the Summit. On 8th December, the Council met and approved the draft, following
which the Secretary General addressed a letter dated 9th December 2006 to the
Ministers responsible for the East African Community Affairs in the three Partner
States in which he wrote –
“Re: Proposals for the Amendment of the Treaty for the Establishment of the East
African Community.
I have the honour to inform you that I have received proposals from the Council of
Ministers for the amendment of the Treaty for the establishment of the East African
Community.
The proposals are shown in Part 2 of the Report of the 12th Extraordinary Meeting
(Ref EAC/CM/EX/12/2006) which is enclosed herewith. In accordance with Article
150(3) of the Treaty, I request you to facilitate your Partner State’s consideration of
these proposals. Given the urgency on this matter, please submit the comments to
me by Monday, 11th December 2006. This will enable me submit the proposals to the
Summit of Heads of State for consideration and adoption”
55. The responses were prompt. Uganda’s First Deputy Prime Minister/Minister of East
African Affairs replied on 11th December, intimating simply that Uganda had no
objection to the proposed amendments to the Treaty. The Kenya Minister of East
African Community replied on 13th December also intimating that Kenya concurred
with the proposed amendments.
56. Only the Permanent Secretary of the Tanzania Ministry of East African Cooperation,
who replied on 12th December, alluded to any consultation on the proposals. He
wrote in part –
“We have reviewed the Report of the 12th Extraordinary Meeting… (Ref. No. EAC/
CM/EX/12/2006) dated 8th December 2006 and Tanzania is in agreement with the
proposals therein. Given the urgency of the matter and the professionalism shown by
the Partner States Attorney Generals (sic) and the Council of Ministers, the proposals
can now be submitted to the Higher Authorities for consideration.
Please note that December 9th 2006 was Tanzania’s 4th Independence Day
celebrations and 10th December 2006 was a Sunday, hence consultations could not
have been done effectively during these days.”
57. These were the only comments from the Partner States on the proposed amendments.
For the purposes of paragraph (4) of Article 150, therefore, the Partner States through
their responsible officials made the comments within the prescribed period of 90 days
after the Secretary General’s communication. The earliest was 2 days, and the latest
was 4 days after the communication.
58. It is evident from the aforesaid correspondence that no serious widespread
consultations on the amendments within the Partner States were intended let alone
carried out. It is noteworthy that according to the record of the meeting of the
Attorneys General, even communication to the Partner States under paragraph (4)
was not contemplated since the recommendation was that Council should approve
the draft and submit it to the Summit for consideration and adoption. It is also
noteworthy that apparently the persons whose initial recommendation to make the
amendments was endorsed by the Summit in its communiqué and who later approved
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the Attorneys General’s draft amendments to be communicated to the Partner States,

are virtually the very persons who received and considered the amendment proposals
in the name of the Partner States. The Kenya Minister made no pretensions about
consultations when in his reply to the Secretary General he said –
“I have studied the report and the proposals therein and Kenya concurs with the
proposed amendments.”
59. Even in the case of Tanzania where the Permanent Secretary’s reply appears to imply
that after the public holiday on Independence Day and Sunday there was some
consultation on Monday the 11th December, there cannot have been wide or much
consultation on the drafted amendments before he sent the reply on 12th December.
Needless to say that the way the matter was handled ridicules the provision for
forwarding the proposed amendments to the Partner States.
60. As we observed earlier in this judgment, under Article 7 the people’s participation in
cooperation activities set out in, and envisaged under the Treaty, is ranked high among
the operational principles of the Community. The best illustration in the text of the
Treaty is Article 30 where specifically, every resident of a Partner State is empowered
to access this Court for the purpose of participating in ensuring compliance with the
Treaty.
61. However, neither Article 150 nor any other provision of the Treaty specifies the
modality and extent of people’s participation in cooperation activities in general and
in the amendment of the Treaty in particular. Ideally, it would have been easier for
this Court to uphold and apply the proposition that every amendment of the Treaty
must involve prior consultation of the people, if the draftsman had provided the
measure for determining such involvement or participation, as is done for example,
in integration treaties that provide for consulting the people through referenda.
Undoubtedly other forms of involving and consulting the people are also possible.
62. In this regard, we agree with learned counsel for the applicants that we should take
judicial notice of two major activities subsequent to the Treaty coming into force,
which were preceded by extensive consultations. We do take judicial notice of
the fact that consultation on the “Zero Draft Protocol to Operationalise Extended
Jurisdiction” of this Court is still on-going. We also take judicial notice of the fact
that the proposal by the Summit to fast-track political federation of the Partner States
was subjected to extensive consultations of diverse categories of the people in the
Partner States, and ended in a determination that there was no consensus among
the people to alter the sequence of stages set out in Article 5(2) of the Treaty for
the gradual phasing of the integration process towards the ultimate stage of political
federation. Although the two sets of consultations were not conducted uniformly,
they undoubtedly reflect agreement among the Partner States that the principle of
people-centered cooperation is also applicable to the Treaty amendment process.
63. In addition to these two examples mentioned by counsel for the applicants, we also
take judicial notice of the consultations that preceded the conclusion of the Protocol
on the Customs Union and the on-going consultations on the Common Market,
which is the next stage in the integration process.
64. As we noted earlier in this judgment, the Vienna Convention provides in Article 31
that the context of a treaty includes the text as well as its preamble and annexes, and
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that for the purpose of interpretation, there shall be taken into consideration inter
alia –
“any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation.”
65. In accordance with this rule, we take into consideration the said series of consultations
as having established agreement among the parties to the Treaty that in seeking to
apply or alter provisions of the Treaty, the people shall be consulted. As to the extent
of such consultations, we think that until more elaborate modalities are evolved as the
Community continues to grow, the resolve to allow participation of the private sector
and civil society recited in the preamble, and the objective to enhance and strengthen
partnerships with the private sector and civil society enunciated in Article 5(3) (g),
provide adequate guidelines.
66. We think this is the interpretation that gives full meaning to the context of the Treaty.
It is common knowledge that the private sector and civil society participated in the
negotiations that led to the conclusion of the Treaty among the Partner States and,
as we have just observed, that they continue to participate in the making of Protocols
thereto. Furthermore, as we noted earlier in this judgment, Article 30 entrenches the
people’s right to participate in protecting the integrity of the Treaty. We think that
construing the Treaty as if it permits sporadic amendments at the whims of officials
without any form of consultation with stakeholders would be a recipe for regression
to the situation lamented in the preamble of “lack of strong participation of the
private sector and civil society” that led to the collapse of the previous Community.
67. In conclusion we find that failure to carry out consultation outside the Summit,
Council and the Secretariat was inconsistent with a principle of the Treaty and
therefore constituted an infringement of the Treaty within the meaning of Article 30.
Accordingly, we answer issue no.2 in the negative.

68. The argument of learned counsel for the applicants on issue no.3 may also be sub-
divided in two distinct aspects. The first aspect is the particular argument that
because the impugned amendments were made in reaction to the interim order of
the Court in Anyang’ Nyong’o Case (supra), the undertaking of the amendments was
an infringement of Articles 8(1) (c) and 38(2) and was ipso facto done in bad faith,The
second aspect is the general argument that inference of bad faith ought to be drawn
from the manner in which the amendments were conceived and processed and from
the content of the amendments.
69. The first aspect was pleaded in paragraph 17(d) of the reference as part of the subject
matter of the reference. In the pleading, however, what was referred to the Court was
the assertion that “attempting or purporting to amend the Treaty while the Court
was still seized of Application No.1 of 2006”infringed the Treaty and consequently
vitiated the entire amendment process rendering it of no legal effect. It could as well
have been argued under issue no.2. The second aspect was not part of the subject
matter of the reference. It appears to have arisen from the averment in the response
of the 4th respondent who pleaded in paragraph 7 that the process of amendment of
the Treaty “was undertaken in utmost good faith in accordance with the Treaty...”,
85
which begs the question whether that aspect of the issue was properly referred to the
Court under Article 30. We shall dispose of the two aspects separately.
70. Article 8(1) (c) is an undertaking by the Partner States to abstain from any measures
likely to jeopadise achievement of objectives of the Treaty or the implementation of
its provisions. Article 38 is concerned with the principle of acceptance of the Court’s
decisions and in paragraph (2) it provides – “Where a dispute has been referred to the
Council or the Court, the Partner States shall refrain from any action which might be
detrimental to the resolution of the dispute or might aggravate the dispute.”
71. The contention for the applicants is that the impugned amendments were
undertaken with a view to threaten and cow down the Court. Learned counsel for
the applicants premised his argument on a remark appearing in the record of the
meeting of the Council held on 28th November 2006, during the deliberations on
the implications of the Court’s interim order, to the effect that “there is need for the
organs of the Community to appreciate and support each other in the discharge of
the Community functions.” He invited the Court to infer from this remark that the
Council was unhappy and even angry with the Court order, hence the inclusion in
the recommended amendments the expansion of grounds for removal of judges of
the Court.
72. Much of learned counsel’s argument was geared to showing bad faith. However,
when asked by the Court to explain how the reaction of the Council which was
ultimately endorsed by the Summit in the communiqué was likely to be detrimental
to the resolution of the dispute or to aggravate it, the thrust of learned counsel’s
response was as follows: The decision to amend the Treaty was a reaction to the
Court’s interim order in Anyang’ Nyong’o case. Both the Council and the Summit
were aware that the resolution of the dispute in that case was still pending in the
Court. The proposal to extend the grounds for removal of judges from the Court was
calculated to intimidate the judges and consequently was likely to be detrimental to
the resolution of the dispute. In his lengthy reply on issue no.3, learned counsel for
the respondents did not address this aspect. In our view there is substance in the
arguments of learned counsel for the applicants, particularly in the context of the
surrounding circumstances, whose summary below gives a clear understanding of
this conclusion.
73. It is common knowledge that at all the material times the two members of the Court
from the Republic of Kenya had been victim of a lightening scoop on the Kenya
Judiciary in 2003 that saw 23 judges suspended from service on general allegations
of corruption. The allegations against them were to be inquired into by tribunals.
Subsequently, one of the two judges of this Court was cleared of the allegations
against him without their being inquired into by the tribunal. He voluntarily retired
from the Kenya judiciary thereafter. The inquiry in respect of the other judge has not
progressed up to the present day, 5 years down the road. Both judges were on the
panel of the bench that was seized of the Anyang’ Nyong’o case (supra).
74. The pertinent amendment extending the grounds for removal of a judge is that under
Article 26(1) (b) the Summit may remove from office –
“ (b)…a Judge who also holds judicial office or other public office in a Partner State
[if that judge] –
86
(i) is removed from that office for misconduct or due to inability to perform the
functions of the office for any reason; and
(ii) resigns from that office following allegation of misconduct or of inability to
perform the functions of the office for any reason;
2. Where –,
(a) …
(b) a Judge is subject to investigation by a tribunal or other, relevant authority of
a Partner State with a view to his or her removal from an office referred to in
paragraph 1(b); or
(c) … the Summit may, subject to paragraph 2B, suspend the Judge from the
exercise of the functions of his or her office.”
75. The only reasonable and irresistible inference from these provisions is that, while they
may be of general application, they were designed to suit the circumstances of the two
Kenya judges on this Court. The test to apply in determining if that move infringed
Article 38(2) is not whether or not it intimidated or was calculated to intimidate the
two judges or any other judge of the Court. The obligation under the Article is not to
refrain from an act that is detrimental but from one that might be detrimental. In our
considered view, given the circumstances we have just summarized, the move was
capable of unduly influencing the pending judgment in Anyang’ Nyong’o case(supra)
and thereby be detrimental to the just resolution of the dispute. The fact that it did
not have that effect is credit to the sense of independence on the part of the two
judges together with the other judges on the panel, and to their resolve to uphold the
principles of judicial integrity and judicial independence. We therefore hold that that
part of the amendments constituted an infringement of Article 38(2) of the Treaty.
76. Turning to the second aspect of issue no.3, we reiterate what we have just observed
that it is not part of the subject matter referred for determination under Article 30 of
the Treaty. The reference was not for determination whether the amendments were
made in bad faith, but rather whether the amendment process did not comply with
specified provisions of the Treaty, and therefore infringed them. As submitted by
learned counsel for the respondents, while in the 4th respondent’s response and in
three of the affidavits supporting the respondents’ pleadings it was positively asserted
that the amendments were made in good faith, the applicants were not assertive in
their pleadings that the amendments were made in bad faith, save that in the affidavit
supporting the reference there was an oblique or implicit mention of the deponent’s
belief that “amendments (to the Treaty) should be made in good faith”.The emphasis
in the reference and the supporting affidavit is that the amendment process was illegal
for infringing provisions of the Treaty. Strictly therefore, the pleading in the 4th
respondents’ response that the amendments were made in good faith is more in the
nature of “a cross-reference”, which is not provided for or envisaged under Article
30. We are therefore constrained to observe for future guidance, that upon further
reflection we think that we should not have allowed the framing of this issue as it
was framed. However, having allowed not only the framing of the issue but also full
arguments on it, we consider it prudent to make our views on it known.
77. In submitting that the impugned amendments were not carried out in good faith,
learned counsel for the applicants relied on the following grounds, namely that –
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»» in recommending the amendments Council was motivated by an apparent

perception that the Court was not cooperating with other organs of the Community,
»» the amendments were carried out in extraordinary haste;
»» the substance of the amendments, namely restructuring the Court into two
divisions and increasing grounds for removal of judges, had no relationship
with the problem or mischief the Council purported to address, namely delays of
Community activities due to suspension of EALA functioning resulting from the
Court’s interim order;
»» the way to avert the problem posed by the interim order in good faith, would have
been for the Partner State concerned to concede and cause a fresh election of its
representatives to EALA, without waiting for the final judgment.
78. Learned counsel for the respondents submitted that there was no straight
simple definition of the expression “good faith”, but that it connotes fairness and
reasonableness. He stressed that at international law, states are assumed to act in good
faith and consequently the courts are reluctant to impute bad faith on the part of a
state unless it is well established by very clear evidence. In support of this proposition
he quoted a passage in the arbitral award in the Tacna-Arica Question, In the Matter
of Arbitration between the Republic of Chile and the Republic of Peru (UN Reports of
International Arbitral Awards, 2006, Vol. II 921-958).
79. He argued that in the instant case, the impugned amendment process was undertaken
by three Partner States acting together in the Council and the Summit, which makes it
more difficult to impute bad faith on the part of three States. He contended that even
if it is assumed that one Partner State was irked by, and over reacted to the interim
order that questioned the legitimacy of its choice of representatives to the EALA, the
other two who were not party to the Anyang’ Nyong’o case (supra) could not have
been similarly affected by the interim order. He opined that apart from that order,
there must have been other matters taken into consideration in deciding to amend
the Treaty. He further contended that the Partner States were within their rights to
consider the implications of the interim order on the functioning of the Community,
so long as they abided by the Court decision as they did.
80. Furthermore, learned counsel submitted that neither infringement of a treaty
provision per se nor the expeditious processing of the amendments in the instant
case should be construed as acting in bad faith or as evidence thereof.
81. The reference in the Anyang’ Nyong’o case (supra) arose from a highly politicized
dispute over the determination of Kenya’s nine new Members of the EALA. It is
apparent that although technically the reference raised a legal issue of interpretation
of the Treaty, the contesting parties viewed it in light of the political dispute and
any Court decision in it, whether interim or final, was taken as a matter of victory
or defeat in their political dispute. What is more, the timing of the interim order,
though unavoidable, was unfortunate. It issued when the aura of that dispute was
still dominant. It was literally on the eve of inauguration of the 2nd EALA when all
concerned had converged on Arusha for that important event in the calendar of the
Community. The order had the immediate effect of suspending the event and thereby
the functioning of the EALA. That it met hostile reception from some quarters in that
environment was inevitable and not surprising.
88
82. We agree with learned counsel for the respondents that the Council was entitled and
indeed under duty to consider the implications of the interim order on the activities
and functioning of the Community as a whole. The inexplicable matter, however,
is that after identifying the problems resulting from the suspension of EALA
activities, the Council did not come up with solutions to those problems. Instead, it
recommended the restructuring of the Court, as if the Court was the problem, which
recommendation had no bearing on the solution of the identified problems. It is on
this dichotomy that the applicant’s contention that the amendments were not made
in good faith, is anchored. However, though we accept that the recommendation
thus appears to be without rationale that alone cannot be sufficient proof that the
amendments were not made in good faith let alone that they were made in bad faith.
What constitutes bad faith?
83. The holding by the Supreme Court of the Philippines in Benito Ang vs. Judge R.G.
Quilala and others: [A.M. No. MTJ-03-1476 February 4, 2003]
[http://www.supremecourt.gov.ph/jurisprudence/2003/feb2003/am_mtj_03_1476.
htm] appears to be pertinent and to provide a comprehensive answer to this not so
simple a question. Judge Ynars-Santiago, with whom all the other judges on the panel
concurred, said –
“Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest
purpose or some moral obliquity and conscious doing of a wrong; a breach of a sworn
duty through some motive or intent or ill-will; it partakes of the nature of fraud.
84. It contemplates a state of mind affirmatively operating with furtive design or some
motive of self-interest or ill-will for ulterior purposes”With regard to the difficulty
of imputing bad faith on a State, we agree with the view expressed in the passage
referred to us by learned counsel for the respondents from the arbitral award in the
Tacna-Arica Question (supra). At p.930 of the report, the arbitrator says – “While
there should be no hesitation in finding such intent or bad faith, if established, and
in holding the party guilty thereof to the consequences of its action, it is plain that
such a purpose should not be lightly imputed. Undoubtedly the required proof may
be supplied by circumstantial evidence, but the onus probandi of such a charge should
not be lighter where the honour of a Nation is involved than in a case where the
reputation of an individual is concerned. A finding of the existence of bad faith should
be supported not by disputable inferences but by clear and convincing evidence which
compels such a conclusion. ”
85. In Barcelona Traction, Light and Power Company Limited (Belgium vs. Spain) 2nd
Phase (1970) I.C.J. Reports, Judge Tanaka (in a Separate Opinion) at p.159 says –
“Although the Belgian Government insists on the existence of bad faith on the part
of the Spanish judiciary and puts forward some evidence concerning the personal
relationship of Mr. Juan March and his group with some government personalities
etc … we remain unconvinced of the existence of bad faith on the part of the Spanish
administrative and judicial authorities. What the Belgian Government alleges for
the purpose of evidencing bad faith of the Spanish judges concerned does not go
very much beyond surrounding circumstances; it does not rely on objective facts
constituting collusion, corruption, flagrant abuse of judicial procedure by the Spanish
judiciary. …. It is not an easy matter to prove the existence of bad faith because it is
89
concerned with a matter belonging to the inner psychological process, particularly in

a case concerning a decision by a State organ. Bad faith cannot be presumed.”
86. We think the same must be said of the evidence, such as there was, in the instant case.
It fell short of proving conclusively either the contention of the respondents that the
impugned amendments were made in good faith or that of the applicants that the
impugned amendments were made in bad faith. However, the former contention is
helped by the presumption of fact that a State does not act in bad faith.
87. In order to rebut the presumption it was not sufficient to show that the amendments
were initiated as a result of the interim order which irked officials of one Partner State,
and that they were irrational because they did not address the mischief caused by the
interim order. It was necessary to adduce cogent evidence leading to a compelling
conclusion that all three Partner States colluded to make the amendments from such
ill-motives as to intimidate or spite the Court or its judges. From the evidence as it
stands, the Court has no insight on what transpired during the deliberations that led
to each proposal for amendment. It is noteworthy that the only affidavit evidence
adduced was from deponents who did not even claim to have had personal knowledge
as participants in the deliberations that resulted into the impugned amendments.
Even if the issue had been properly within the reference, therefore, the evidence
would not have been sufficient to base a holding on.
Issues No.4 and No. 5

88. The last two framed issues were also not part of the subject matter of the reference
for the Court’s determination under Article 30, and we allude to them briefly only
because we allowed argument on them. The fourth issue is “Whether the amendments
as carried out can be stopped”. In his submission under this issue, learned counsel
for the respondents, relying heavily on the decision of the High Court of Kenya in
the case of Anyang’ Nyong’o and 10 others vs. Attorney General and another, High
Court Case No. 49 of 2007, maintained that upon the amendments being ratified
by the Partner States in accordance with paragraph 6 of Article 150, they took effect
and therefore became part of the Treaty. He argued that as such, they were no longer
amendments and could not be reversed. According to learned counsel, the position
would have been different if the reference was made prior to the ratification when the
amendments had not taken effect.
89. With due respect, we do not find merit in this argument. The scope of Article 30
is not limited to anticipatory infringement of the Treaty. The Article envisages this
Court determining the legality of an Act that has been enacted and come into force,
a regulation that has been made, a directive that has been given, a decision that has
been taken and an action that has been done and concluded. If upon reference of any
of these the Court finds that it is an infringement of the Treaty or otherwise unlawful
it has to so hold 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.
90. We reiterate that the last framed issue, namely “Whether the amendments will
strengthen the Community”, is also not part of the reference on the legality of the
impugned amendments. Indeed, as it turned out during submissions by counsel,
90
there was disagreement as to whose pleadings raised it, with counsel on either side
seeking to disown it because it was not material to his case. Be that as it may, it was
not seriously canvassed that the impugned amendments were unlawful or infringed
the Treaty because they did not strengthen the Community or vice versa. Besides,
with all due respect to learned counsel, neither party was able to show definitively
to what measure and in what way the amendments strengthened or weakened the
Community. In essence their submissions were in the nature of speculation. In the
circumstances, we make no findings on this issue.
Conclusion
91. In the result, we hold that the lack of people’s participation in the impugned
amendment process was inconsistent with the spirit and intendment of the Treaty in
general, and that in particular, it constituted infringement of principles and provisions
in Articles 5(3) (g), and 7(1) (a). We also hold that the purpose for which Article 26
was amended constituted infringement of Article 38(2) of the Treaty.
Under paragraph 19 of the Reference, the applicants prayed for four separate
declarations. Our said holding covers the declarations sought under sub¬paragraphs
(a) and (b). Under sub-paragraphs (c) and (d) they pray for –
(c) “Declaration that the entire process of amendment of the Treaty to date is unlawful
(d) Declaration that the purported ratification processes for the said Treaty
amendments employed by the[Partner States] are illegal, unconstitutional and of
no legal effect”.
92. Earlier in this judgment, we indicated that we would disregard as abandoned, the
averment in paragraph 17(c) of the reference alleging that the ratifications of the
amendments were unconstitutional, illegal and of no legal effect since at the trial it
was not canvassed. Accordingly we also disregard the corresponding prayer (d) as
abandoned.
93. With regard to the prayer in (c), we have considered circumstances which appear to
militate against the grant of that declaration, notwithstanding our holding. First, the
text of the Treaty is not explicit on the requirement of people’s involvement in its
amendment. We have had to consider several provisions of the Treaty in order to come
to the conclusion that the failure to involve the people in the amendment constituted
an infringement of the Treaty. In view of that we deduce that the infringement was
not a conscious one. Secondly, we are inclined to the view that after this clarification
of the law on the matter the infringement is not likely to recur. Thirdly, while we are
mindful of the gravity of infringement of Article 38(2) of the Treaty, we take note of
the fact that in the instant case it had no significant effect, if any. Lastly in our view,
not all the resultant amendments are incompatible with the Treaty objectives, and
those that are, which we shall revert to presently, are capable of rectification.
94. In the circumstances we think this is a proper case where we should invoke the
doctrine of prospective annulment. As we observed in Callist Mwatela Case, (supra),
the doctrine is good law and practice. We should add that it is particularly beneficial
for our stage of developing integration and the emerging Community jurisprudence.
In the result we decline to invalidate the amendments and declare that our holding
91
on the requirement of involvement of people in the Treaty amendment process shall

have prospective application.
95. Two other specific prayers remain. We consider that in view of our findings the
order prayed for in paragraph (e) is superfluous. Lastly, on costs we order that the
respondents shall jointly and severally bear the applicants’ costs.
96. Before taking leave of the reference, we are constrained to draw attention of those
responsible for initiating rectification of anomalies in the Treaty, to two of the
amendments whose implications may have been lost in the haste.
1. By the provisions under Articles 23, 33(2) and 34, the Treaty established the
principle of overall supremacy of the Court over the interpretation and application
of the Treaty, to ensure harmony and certainty. The new
a) proviso to Article 27; and
b) paragraph (3) of Article 30, have the effect of compromising that principle and/or
of contradicting the main provision. It should be appreciated that the question
of what “the Treaty reserves for an institution of a Partner State” is a provision
of the Treaty and a matter that ought to be determined harmoniously and
with certainty. If left as amended the provisions are likely to lead to conflicting
interpretations of the Treaty by the national courts of the Partner States.
2. Article 26 of the Treaty established a mechanism for the removal of judges for
misconduct and inability to function as determined by an independent tribunal
appointed by the Summit, obviously applying uniform standards. When read
together with Article 43(2) it becomes apparent that the objective of the Treaty is
for the judges of the Court to be independent of the Partner States they originate
from. The introduction of automatic removal and suspension on grounds raised
or established in the home State, and applicable to only those in judicial or public
office, makes possibilities of applying un-uniform standards to judges of the same
court endanger the integrity of the Court as a regional court. Under the original
mechanism such grounds could be submitted for consideration at the Community
level.
97. We strongly recommend that the said amendments be revisited at the earliest
opportunity of reviewing the Treaty.
98. Lastly, we wish to commend the applicants for the vigilance they have demonstrated
in trying to ensure the protection of the objectives of the Treaty. We also wish to
thank all the counsel for all the parties in this reference for their industry in assisting
us to come to a just decision.
****
The East African Court of Justice
Arising Out of Reference No.3 of 2007
The East African Law Society, The Law Society of Kenya, The Tanganyika Law
Society, The Uganda Law Society And The Zanzibar Law Society
And
The Attorney General of the Republic of Kenya, the Attorney General of the
United Republic of Tanzania, the Attorney General of the Republic of Uganda, the
Moijo M. ole Keiwua P, Joseph N. Mulenga J, Kasanga Mulwa J, Mary Stella Arach-
Amoko J. and Harold R. Nsekela J
July 11, 2007
Amendments to the Treaty- Interim orders- Unlawful actions- Whether the applicants
had a cause of action and should be granted interim orders - Whether the challenged
amendments had already entered into force
Articles 150 and 38 of the Treatyfor the Establisment of the East African Community
The Applicants filed Reference No. 3 of 2007 seeking inter alia a declaration that
the amendments of the Treaty and ratification thereof by the three Partner States
was illegal, unconstitutional and of no legal effect as they contravened Articles 150
and 38 of the Treaty. They also sought interim orders prohibiting the Respondents
from implementing the proposed amendments to the Treaty pending the hearing
and determination of the reference.
Held:
The Applicants reference raised serious questions for trial which, if not controverted,
might entitle them to succeed in respect of a number of their prayers. However, since
the impugned amendments to the Treaty had been implemented what had been done,
even if it were unlawful, could not be undone in interlocutory proceedings. Thus the
application for interim orders was dismissed.
Cases cited
Auto Garage v. Motokov (No.3) (1971) EA 514
Ex-parte Sidebotham (1880) 14 Ch D 458
Giella v Cassman Brown & Co. Ltd (1973) E.A. 358
Inland Revenue Commissioners v National Federation of Self-Employed and Small
Businesses Ltd (1982)
AC617
93
Janata Dal v H.S. Chowdhary AIR 1993 SC 892

Kenya Commercial Finance Co.Ltd v Afraha Education Society (2001) IEA
P. Gupta v Union of India AIR 1982 SC 149
Prof. Peter Anyang’ Nyongo and 10 Others v The Attorney General of Kenya and 5
Others, EACJ Reference 1 of 2006
Rev. Christopher Mtikila v The Attorney General [1995]TLR 31
Ruling
1. The above mentioned applicants have brought Reference No.3 of 2007 under Articles
1, 4, 5, 6, 7, 8, 9, 11, 27, 30, 38 and 150 of the Treaty for the Establishment of the East
African Community (the Treaty); and Rules 1(2) and 20 of the East African Court of
Justice Rules of Procedure. The Reference is supported by an affidavit sworn by Tom
Odhiambo Ojienda, President of the East African Law Society (1st Applicant).
2. The essence of the Reference is to the effect that the amendments of the Treaty and
ratification thereof by the three Partner States, namely the Republic of Kenya (1st
Respondent); the United Republic of Tanzania (2nd Respondent) and the Republic
of Uganda (3rd Respondent) are illegal, unconstitutional and of no legal effect since
they were made in contravention of Articles 150 and 38 of the Treaty. The applicants
are therefore seeking from the Court the following prayers:¬
1) “ Declaration that the process of amendment of the Treaty infringes Articles 5, 6,
7, 8, 9, 11, 38 and 150 of the Treaty, as well as peremptory norms of international
law;
2) Declaration that amendment of the Treaty shall incorporate public consultation
and participation, in the same manner that was employed in negotiating the Treaty
and the various Protocols under it, especially the Protocol on the Establishment of
the East African Community Customs Union;
3) Declaration that the entire process of amendment of the Treaty to date is unlawful
4) Declaration that the purported ratification processes for the said Treaty
Amendments employed by the Republic of Kenya, Republic of Uganda and the
United Republic of Tanzania are illegal, unconstitutional and of no legal effect;
5) Order that the Partner States cannot amend the Treaty without commencing a
fresh process, as provided for under Article 150 of the Treaty;
6) Order that the cost of and incidental to this Treaty Reference Application be met
by the Respondents;
7) That this Honourable Court be pleased to make such further or other orders as
may be necessary in the circumstances.”
3. The Reference was filed on 18th May 2007 together with this application which was ex
parte by Notice of Motion for interim orders, inter alia, that – “Pending the hearing
and final determination of the instant Reference, this Honourable Court be pleased
to restrain and prohibit the 1st , 2nd , 3, and 4th Respondents from formulating,
publishing, enacting, ratifying, or otherwise howsoever purporting to implement
the proposed amendments to the Treaty for the Establishment of the East African
Community that were commenced pursuant to the Official Communiqué of the
94
Summit of Heads of State of the East African Community that was issued on or about
30th November 2006.” In order to strike a balance between the need to hear the
application expeditiously with the need to hear all the parties in view of the gravity
of the issues raised in the application, the Court on its own motion directed that the
application be heard inter partes and abridged the time for filing replies.
4. At the hearing of the application, Prof. Ssepembwa outlined the principles that
normally guide courts when called upon to decide whether or not to grant the
injunctive order sought. He submitted that the applicant should first establish a
prima facie case with a probability of success. On this point, he contended that the
Reference raises more than a prima facie case. The issue involved was the correct
interpretation of Article 150 of the Treaty on the procedure to be followed when
amending the Treaty. He added that even the respondents in their replying affidavits
sworn by Ms. Njeri Mwangi, for the 1st respondent; Mr. Martin Mwambutsya for the
3rd respondent and Amb. Julius Baker Onen, for the 4th Respondent, had raised the
same issue, but the parties are poles apart as regards the exact interpretation of Article
150 of the Treaty.
5. The second issue in contention is the applicants’ claim that the Respondents were
in breach of Article 38 of the Treaty. The Applicants allege that the respondents
proceeded on the amendment of the Treaty despite the fact that the matter was still
pending in Court.
6. In his view the first principle that there was a serious case before the Court had been
established, but given the nature of the application before the Court, he did not go
into the merits of the case at this juncture. As regards the second principle, Prof.
Ssempebwa submitted that the Reference was essentially a public interest litigation
which seeks to ensure the observance of the Treaty in the interest of the citizens of
East Africa. He submitted that if the amendments are implemented, they will cause
irreparable injury particularly to the East African Court of Justice.
7. Prof. Ssempebwa pointed out that under the amendments, the current decisions of
the Court will be deemed to be decisions of the First Instance Division of the Court
and therefore subject to appeal to the Appellate Division of the Court. Such a course
of action will be extremely unfair and could cause irreparable harm and interfere with
the smooth operation of organs and institutions of the East African Community.
8. 8. He also submitted that the amendment to Article 30 of the Treaty would curtail
the jurisdiction of the Court thereby rendering it almost impotent, as he put it. There
was also the question of the limitation period of two months now proposed in the
amendments. The cumulative effect of all these amendments is that they would cause
irreparable harm to the smooth operation of the Court to the prejudice of the people
of East Africa.
9. Learned Counsel for the Respondents strongly resisted the application for an interim
injunctive order. From their respective replying affidavits and the oral submissions
of Ms. Kimani; Mr. Mwaimu; Mr. Oluka and Mr. Kaahwa, three issues stand out,
namely;
1) That the applicants have not disclosed any cause of action against any of the
Respondents;
2) That the applicants have not established the conditions essential to move the
95
Court to grant the order sought and

3) That the application has been overtaken by events since the challenged amendments
have already come into force.
10. 10. It is the contention of the respondents that the applicants have not shown what
rights or interest were violated or infringed upon. The two affidavits in support of
the Notice of Motion were couched in generalities without disclosing the nature of
the specific injury that was personal to them and which has been infringed under
the Treaty. What the respondents are saying in effect is that the applicants have no
locus standi to institute the Reference before the Court. They have not shown what
legal right has been violated and that the respondents are liable for that violation. On
the other hand, Prof. Ssempebwa submitted that the respondents in purporting to
amend the Treaty contravened Article 150, thus depriving the rights of East Africans
to participate in the process.
11. Consequently the applicants had the obligation to access the Court to stop this breach
of Article 150 of the Treaty, among others. Our starting point in this regard is the
traditional view on locus standi. In the landmark Indian case of S.P. Gupta v Union
of India AIR 1982 SC 149. Bhagwati, J. in the course of his judgment stated as follows
at page 185:“The traditional rule in regard to locus standi is that judicial redress is
available only to a person who has suffered a legal injury of violation of his legal right
or legally protected interest by the impugned action of the state or a public authority
or any other person or who is likely to suffer a legal injury by reason of threatened
violation of his legal right or legally protected interest by any such action.
12. The basis of entitlement to judicial redress is personal injury to property, body, mind
or reputation arising from violation, actual or threatened, of the legal right or legally
protected interest of the person seeking such redress. This is a rule of ancient vintage
and it arose during an era when private law dominated the legal scene and public law
had not yet been born.” The learned judge continued at page 190 as follows: “If no
one can maintain an action for redress of such public or public injury, it would be
disastrous for the rule of law, for it would be open to the State or a public authority to
act with impunity beyond the scope of its power or in breach of a public duty owed
to it.
13. The Courts cannot countenance such a situation where observance of the law is
left to the sweet will of the authority bound by it, without any redress if the law is
contravened.” According to the traditional view of locus standi as well explained
above, only an aggrieved person, that is, one who has a more particular or peculiar
interest of his own beyond that of the general public, can access the Court to have his
rights vindicated. (see also: Exparte Sidebotham (1880) 14 Ch D 458).
14. Despite this apparent rigidity in the rule, Courts have somewhat relaxed the rule.
For instance, in the case of Inland Revenue Commissioners v National Federation
of Self Employed and Small Businesses Ltd(1982) AC 617, Lord Diplock had this to
say at page 644 E:“It would in my view be a grave lacuna in our system of public
law if a pressure group like the federation or even a single spirited taxpayer, were
prevented by outdated technical rules of locus standi from bringing the matter to
the attention of the Court to vindicate the rule of law and get the unlawful conduct
stopped.” From India again, in the case of Janata Dal v H.S. ChowdharyAIR 1993 SC
96
892, the Court stated at paragraph 62:“….. the strict rule of locus standi applicable to
private litigation is relaxed and a broad rule is evolved which gives the right of locus
standi to any member of the public acting bona fide and having sufficient interest in
instituting an action for redressal of public wrong or public injury but who is not a
mere busybody or a meddlesome interloper; since the dominant object of PIL is to
ensure observance of the provisions of the Constitution or the law which can be best
achieved to advance the cause of the Community ….. or public interest by permitting
any person, having no personal gain or private motivation or any other oblique
consideration, but acting bona fide and having sufficient interest in maintaining an
action for judicial redress for public injury to put the judicial machinery in; motion
like action popularis of Roman Law whereby any citizen could bring such an action
in respect of public delict.”
15. Similar sentiments were echoed by Lugakingira, J. in the High Court of Tanzania in
the case of Rev. Christopher Mtikila v The Attorney General [1995] TLR 31 at page 45
where he stated: “I hasten to emphasize, however, that standing will be granted on
the basis of public interest litigation where the petition is bona fide and evidently for
the public good and where the Court can provide an effective remedy.” In our recent
decision in Reference No.1 of 2006,Prof. Peter Anyang’ Nyongo and 10 Others vs The
Attorney General of Kenya and 5 Others (unreported), we had occasion to explain
what is a common law cause of action, and cited the case of Auto Garage v. Motokov
(No.3) (1971) EA 514. We also stated that various Articles in the Treaty including
Article 30 create special causes of action which different parties may refer to this
Court for adjudication.
16. The applicants herein are Bar Associations in their respective Partner States and have
a duty to promote adherence to the rule of law. We are therefore satisfied that the
applicants are genuinely interested in the matter complained of, that is, the alleged
non-observance of the Treaty by the Respondents. We therefore hold that the
applicants have locus standi to make this application.
17. This takes us to the second issue. The conditions for the grant of an interlocutory
injunction were stated in the oft cited case of Giella v Cassman Brown & Co. Ltd
(1973) E.A. 358. Spry, V.P. stated as follows at page 360E: ¬“The conditions for the
grant of an interlocutory injunction are now well settled in East Africa.
1) First, an applicant must show a prima facie case with a probability of success.
2) Secondly, 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.
3) Thirdly, if the Court is in doubt it will decide the case on the balance of convenience.”
(followed in Kenya Commercial Finance Co. Ltd v Afraha Education Society (2001)
IEA 86 at page 89d).
18. From the applicants affidavits in support of the Notice of Motion, the replying affidavits
of the Respondents and the oral submission of the learned Counsel representing the
parties, it is evident that the interpretation of Article 150 of the Treaty will be a subject
matter of contest during the hearing of the Reference. We are satisfied that the totality
of the facts in the affidavits discloses bona fide serious issues to be tried by the Court.
At this stage we must refrain from making any determination on the merits of the
97
application or any defence to it. Despite this limitation, however, we are satisfied that
the applicants have made out a serious question to be tried which if not controverted,
might entitle the applicants to succeed in respect of a number of their prayers. The
applicants have therefore crossed over the first hurdle.
19. The second pre¬condition is that the Courts’ intervention is necessary to protect
the applicants from the kind of injury which may be irreparable and which cannot
be compensated by way of damages in the event the application is refused. Prof.
Ssempebwa submitted that this was public interest litigation and therefore it was not
possible to show personal loss or injury to the applicants. The aim of the Reference is
to ensure the observance of the provisions of the Treaty. We have read the affidavits of
Mr. Tom Odhiambo Ojienda, Mr. Alute Simon Mughwai and the replying affidavits. It
is evident that the impugned amendments to the Treaty have now been implemented
save perhaps the appointment to Judges of the reconstituted Court of Justice.
20. What has been done so far, even if it were unlawful, cannot be undone in these
interlocutory proceedings. Whatever remains to be done by way of operationalization
can be rectified if the amendments are in the end declared illegal by this Court. In the
result and for the foregoing reasons, we dismiss the application for injunction. Costs
to be in the cause.
****
East African Court of Justice - First Instance Division
In The Matter of a Request by the Council of Ministers of the East African

Community for an Advisory Opinion
Johnston Busingye, PJ; Mary Stella Arach-Amoko, DPJ; John Mkwawa, J;Jean-Bosco
Butasi, J; Benjamin Patrick Kubo
April 24, 2009
Consensus- The principle of variable geometry- Unanimity- whether variable geometry

could be applied to guide the community’s integration process- whether consensus in
decision-making implied unanimity.
Articles 7 (e), 12 (3), 14(4), 15 (4), 23(1), 27, 36 and 148 of the EAC Treaty - Rule 13
of the of Rules of Procedure for the Summit of the Heads of State or Government - Rule
13 Rules of Procedure for the Council of Ministers - Rule 13 of the Rules of Procedure
for the Coordination Committees- Article 2 of the EAC Protocol on Decision Making-
Article 31 (1) of the Vienna Convention on the Law of Treaties, 1969.
On 19th December, 2008, Counsel to the Community filed an application seeking an

advisory opinion on behalf of theCouncil of Ministers of the East African Community
over several issues relating to the principle of variable geometry, flexibility in the
progression of integration activities, unanimity and consensus decision-making by
the Summit of Heads of State and the Council of Ministers.
Held:
1. Variable geometry is one of eight Operational Principles of the Community
provided under Article 7 that govern the practical achievement of the objectives
of the Community. It is a strategy for implementation that is in harmony with the
requirement for consensus in decision-making if applied appropriately. It is not a
decision making tool in itself but can be comfortably applied to guide the integration
process. However, it should be resorted to as an exception, not as the rule.
2. In applying variable geometry, the “core” and periphery” approach should be taken
into account. Partner States can agree on areas over which the principle can and
cannot apply. Simultaneous implementation need not be forced upon a Partner State
that is not ready just as a refusal or delay of implementation need not be used to
block a Partner State or Partner States that are ready. Simultaneous implementation
is impracticable in some circumstances and Partner States cannot be expected to
operate within such strait jacket or one size fits all situations.
3. While achieving consensus by unanimity is a desirable ideal but, it is rarely possible.
Implying that consensus in decision-making as used in the Treaty means unanimity
of Partner States is a mere perception based on practice. Consensus, and not
unanimity, is provided for in the Treaty and Protocol on Decision Making as the
basis for decision-making. Consensus is not defined in the Treaty, the Protocol on
Advisory Opinion
99
Decision Making and the Rules of Procedure of the various organs and its application
is unclear. It does not imply unanimity as these are two different concepts. The cure
for this defect does not lie in equating it, from the blue, with unanimity. Rather it lies
in amending the relevant instruments.
4. Article 15 (3) of the Treaty provides how an objection in the Council of Ministers
should be handled. It does not mean nor imply that consensus is synonymous with
unanimity.
5. Under Article 148 consensus will be achieved as required, but for purposes of
achieving that consensus the “views” of the Partner State being expelled or suspended
would not count. All Partner States, except the Partner State being sanctioned, would
participate in reaching the decision, irrespective of whether the views of the Partner
State being sanctioned are supportive of the sanction or not. The Article does not
imply that consensus is synonymous with unanimity.
Opinion
Background:
1. The genesis of the present Application for this Court’s Advisory Opinion was traced
to a before us to a dilemma being faced by the Council of Ministers, (hereinafter
referred to as “the Council”) regarding:¬
(a) The Application of the Principle of variable geometry as provided in the Treaty for
the Establishment of the East African Community (hereinafter ‘the Treaty’); and
(b) The Application of the Principle of variable geometry vis-à-vis the requirement
for consensus in decision¬-making.
2. The Court was told that, arising from the aforesaid dilemma, the Council did at its
16th Meeting held at Arusha,
Tanzania on 13th September, 2008 make, vide item 2.7 in its Report of the meeting, a
proposal in the following terms: ‘2.7 Proposal for requesting for Advisory Opinion of
the East African Court of Justice
2.7.1 Introduction: According to the Treaty “The Summit, the Council or a Partner
State may request the East African Court of Justice to give an Advisory Opinion
regarding a question of law arising from the Treaty which affects the Community”.
The purpose of seeking an advisory opinion is to enable the Community, its organs
and institutions and the Partner States get a clear interpretation of the Treaty on
matters that are contentious or not clear. To the extent that the legal position
on following issues has affected the decision-making process, progress in the
formulation and progress of programmes or have been challenged by other organs
of the Community, it is important for the Council to seek an advisory opinion.
2.7.2 Application of the Principal of variable geometry: The Treaty provides that one
of the operational principles of the Community shall be “the principle of variable
geometry which allows for progression in co¬operation among groups within
the Community for wider integration schemes in various fields and at different
speeds”.
3. This provision, read together with the relevant interpretation of this principle in the
Treaty, suggests:
100
a) flexibility in the progression of integration activities, projects and programmes;
and
b) Progression of such activities, projects and programmes in co-operation by some
of the Partner States as opposed to all the Partner States simultaneously.
4. However, this interpretation is contestable on the basis of the fundamental
requirement, under the Treaty and relevant annexes, for consensus as a basis for
decision-making by the Summit of Heads of State and the Council of Ministers.’
5. Stemming from the above concerns; ‘The Council:
a) directed the Secretariat to seek an advisory opinion of the East African Court of
Justice on the Application of the principle of variable geometry; (EAC/CM16/
Decision 11);
b) directed the Secretariat to file a request for an advisory opinion on the application
of the principal of variable geometry in the East African Court of Justice by 31st
October, 2008; and (EAC/CM16/Directive 12).’
The Application:
6. Pursuant to the aforesaid directions, the Counsel to the Community did on 19th
December, 2008 file the present Application under Articles 14(4) and 36 of the Treaty
for the Establishment of the East African Community (“The Treaty”) and Rule 75 of
the East African Court of Justice Rules of Procedure.
The jurisdiction of this Court is founded in Articles 23(1), 27, 38(3) on acceptance of
judgments and 1, on the definition of ‘judgment’.
Initial scheduled hearing:

7. The hearing of the Application was initially scheduled for 13th February, 2009. On that
date the Applicant was represented by Mr. Wilbert T.K. Kaahwa, learned Counsel to
the Community; the Republic of Kenya was represented by Mr. Anthony Ombwayo,
learned Senior Principal Litigation Counsel in Kenya’s Office of the Attorney General/
State Law Office; the United Republic of Tanzania was represented by Mr. Sirilius
Matupa, learned Assistant Director in Tanzania’s Office of the Attorney¬General,
aided by Ms. Mwema Punzi Juma, learned State Attorney there; while the Republic of
Uganda was represented by Mr. Henry Oluka, learned Senior State Attorney.
(a) Joinder of East African Law Society as Amicus Curiae (Friend of the Court): At the
session of 13th February, 2009 three representatives of the East African Law Society
(EALS), Mr. Alute Mughwai; Dr. Allan Shonubi, President of the EALS; and Mr.
James Mwamu, Secretary General of the said Society applied to this Court, to allow
the said Society to appear as amicus curiae vide Application No 1 of 2008.
8. There was no opposition by the Counsel to the Community, or by the Partner States
represented at the session, to the Society’s request and the Court granted the said
request.
9. The Republic of Rwanda had, on the previous day filled submissions but was not
represented in Court on 13th February, 2009. The Republic of Burundi had neither
filed written submissions nor was it represented in Court. Having regard to the
importance of the Application Court decided that all Partner States as well as the
East African Law Society ought to be given an opportunity to make inputs into the
Advisory Opinion
101
impending debate. Accordingly, the Court ordered all Partner States and the EALS to
file and serve their written submissions by 27th February, 2009.
10. Hearing of the Application was rescheduled to 11th March, 2009 when the parties
were to highlight their written submissions.
Actual hearing:
11. At the rescheduled hearing of the Application on 11th March, 2009, the Applicant
Community, The Republic of Kenya and The Republic Uganda were represented by
the same Counsel who had represented them on 13th February 2009; The United
Republic of Tanzania was represented by Mr. Yohana Masara, learned Senior State
Attorney; while the EALS was represented by learned Counsel, Mr. Donald Deya.
There was no appearance for The Republic of Rwanda and The Republic of Burundi
but Burundi had filed written submissions as had the rest of the Partner States and the
amicus curiae. Council for the Community, the Partner States and EALS made oral
highlights of their written submissions. Summaries of all the submissions made to the
Court are given below for ready reference.
Submissions on behalf of the Applicant Community:

12. Based on the questions posed at the beginning in the very first paragraph of the
background, Counsel to the Community framed the following as the issues in
contention in respect of which this Court’s Advisory Opinion is sought:
i) Whether the principle of variable geometry is in harmony with the requirement
for consensus in decision-making.
ii) Whether the principle of variable geometry can apply to guide the integration
process, the requirement on consensus in decision-making notwithstanding.
iii) Whether the requirement on consensus in decision-making implies unanimity of
the Partner States.
13. It was Applicant’s Counsel’s contention that this Court has jurisdiction to handle
the East African Community Council of Ministers’ request for an Advisory Opinion
pursuant to Articles 23(1), 27 and 36 of the Treaty. He pointed out that the request
is of great significance in the implementation of the Treaty and the growth and
development of the Partner States’ integration process for the following reasons:
a) The request serves to enhance the Court’s role as the Community’s judicial organ.
b) The outcome of the request will guide the process of decision-making which is
critical to the institutional development of the East African Community.
c) The outcome of the request will also contribute to the development of regional
jurisprudence as envisioned under Articles 6, 7 and 126 of the Treaty.
14. Turning to the issue of variable geometry, Applicant’s Counsel pointed out that it is
an innovation of European law allowing member states to tailor their participation
in the European integration process. He said that in the case of the East African
Community, the principle of variable geometry has not been applied to¬date
and indicated that the present Application seeks guidance on how the principle
can be applied here. He reported that within the European Union, application of
the principle of variable geometry allows Member States to negotiate exemptions
from certain Treaty provisions and to individually apply a greater speed on some
102
integration processes than others, using the institutions and procedures laid down in
the Treaty. He gave as one example in this regard, the opt¬out of Denmark, UK and
Ireland from the European Community’s provisions on free movement of persons,
asylum and immigration.
15. The Applicant’s Counsel submitted with particular reference to Article 7 (1) (e) of
the Treaty, that the integration implied by variable geometry is essentially pragmatic
and incremental; that it permits integration to proceed on the basis of progressive
steps, allows smaller subgroups to move faster than the whole group and provides
that many decisions can be made by majority rather than by consensus. In the
latter regard, he pointed out that the European Union and the United Nations have
gradually shifted from consensus decision-making to appropriate application of
majority decision-making . It was Applicant’s Counsel’s contention that application
of variable geometry principles could considerably ease some of the tensions among
sub-regional integration arrangements in the Community and enhance the prospect
of closer and more regional co¬operation.
16. With regard to consensus decision-making , Applicant’s Counsel noted that the
principle runs throughout the executive organs of the Community: for instance, in
the Summit by virtue of Article 12(3); and in the Council by virtue of Article 15(4),
subject to the Protocol on decision-making which enumerates vide Article 2(1) the
matters on which decisions of the Council must be by consensus and provides vide
Article 2(2) that all other decisions of the Council must be by simple majority, without
specifying what those decisions are. Applicants’ Counsel also drew attention to Article
148 providing express Exceptions to the Rule of Consensus, in matters pertaining
to suspension or expulsion of a Partner State where the views of the Partner State
being considered for suspension or expulsion do not count for purposes of reaching
a decision on the proposed suspension or expulsion.
17. Quoting from International Institutional Law, by Schemers G. Henry and Niels, M.
Blokker, Applicants Counsel identified the following as aims of consensus decision-
making as opposed to the use of Majority rule approach:
a) Inclusive: involving as many stakeholders as possible
b) Participatory: soliciting the input and participation of all the parties charged with
decision-making
c) Cooperative: participants strive to reach the best possible decision for the group.
d) Egalitarian: all members in a given group being accorded an equal opportunity to
make input;
e) Solution oriented: striving to emphasize common agreement over differences,
using compromise.
18. Applicant’s Counsel, however, cited the following shortcomings as afflicting
consensus decision-making :
a) Delays in arriving at a consensus: Since consensus decision-making focuses on
discussion and seeks the input of all participants, it can be a time consuming
process. Counsel considered this a potential liability in situations where decisions
need to be made speedily or where it is not possible to canvass the opinion of all
delegates in a reasonable period of time. He added that the time commitment
required to engage in the consensus decision-making process can sometimes
Advisory Opinion
103
act as a barrier to participation for individuals unable or unwilling to make the

commitment.
b) Intransigence associated with determining consensus;
c) The possibility of indiscriminate vetoing of proposals that may be favoured by
the majority of Partner States, which in his view may lead to the preservation of
the status quo. He pointed out that in decision making bodies that use formal
consensus, the ability of individuals or small minorities to block agreement gives
an enormous advantage to anyone who supports the existing state of affairs; and
that this could mean that a specific state of affairs can continue to exist in an
organization long after a majority of members would like it to change;
d) The fact that consensus may not stand the test of usefulness when the membership
of the Community increases to more than five countries;
e) Susceptibility to disruption: Giving the right to block proposals to all group
members may result in the group becoming hostage to an inflexible minority or
individual. Counsel added that “opposing such obstructive behaviour” construed
as an attack on freedom of speech and in turn resolve on the part of the individual
to defend his or her position. He concluded that as a result, consensus decision-
making has the potential to reward the least accommodating group members
while punishing the most accommodating;
f) Abilene/Paradox: Applicant’s Counsel pointed out that consensus decision-
making is susceptible to all forms of groupthink, the most dramatic being
the Abilene paradox. He explained that in the Abilene paradox, a group can
unanimously agree on a course of action that no individual member of the group
desires because no one individual is willing to go against the perceived will of the
decision-making body.
19. Finally, the Applicant’s Counsel concluded his submissions with the following prayer,
namely, that the Court gives an advisory opinion on:
a) the Application of the Principle of variable geometry;
b) the Application of the Principle of variable geometry vis-à-vis the requirement for
consensus in decision-making;
c) Whether the requirement of consensus in decision-making implies unanimity of
the Partner States.
Submission on behalf of Rwanda

20. Rwanda identified the core issues in this application as being:
To determine whether or not the principle of variable geometry and decision¬-
making by consensus are in conflict.
21. It was Rwanda’s submission that the two are not in conflict and that each of them
caters for a different set of issues. Rwanda maintained that it is not a legal requirement
under the Treaty that decision-making must be by consensus; and, in essence, that
the concept of consensus has wrongly been overemphasized by the Partner States
on the basis that the cooperation and integration processes are still in their infancy.
It was Rwanda’s submission that the principle of variable geometry gives a right to
some Partner States to engage into other activities for wider integration and not to
engage in integration activities of the Community and that this would negate the
104
objectives for which the Community was established.
22. To Rwanda, it was evident that for all integration programmes of the Community,
consensus in decision making is indispensable until it is agreed between the Partner
States to amend the Treaty. In Rwanda’s view, the Treaty gives no flexibility to some
groups and that all the Partner States must agree on each and every activity. Rwanda
maintained that there are a number of activities and programmes that would need a
total participation of all the Partner States, without which implementation would be
difficult. In the latter regard, Rwanda noted that among the fundamental principles
to govern the Community are principles of mutual trust, political will and sovereign
equality; that among reasons leading to the collapse of the previous East African
Community was lack of political will; that decision-making for progression of the
integration programmes would highly depend on the political will of the Partner States
and that, as such, the Partner States are bound by the Treaty under Article 6(a). It was
Rwanda’s view that issues such as delays in arriving at consensus and intransigence
associated with determining consensus raised by the Council of Ministers should not
be overemphasized if there is a total agreement that the provisions of Article 6(a)
bind the Partner States.
23. Rwanda pointed out that under Article 8(1) (c), it is the obligation of the Partner
States to abstain from any measures likely to jeopardize the achievements of those
objectives or the implementation of the provisions of this Treaty.
Rwanda noted that the Council had already initiated moves within the Sectoral
Committee on Legal and Judicial Affairs to amend the Treaty. It was Rwanda’s
projection that the strict requirement for consensus, which, as we understood it,
Rwanda considered necessary in the Community’s infancy stages, is bound to be
reversed in due course. Rwanda contended that since the issue of consensus is being
handled by the Council through the Sectoral Committee on Legal and Judicial Affairs,
the present Application to this Court is redundant.
24. In conclusion, Rwanda submitted that the principle of variable geometry is in
harmony with the requirement of consensus in decision making in that the principle
of variable geometry governs progression in the integration activities for some
groups within the Community to engage in other activities outside the Community
while the requirement of consensus in decision making caters for only activities of the
Community and not otherwise. Rwanda reiterated:
a) That the Application by the Council is redundant because the issue said to be in
contention has been resolved; and
b) That the Court should advise the Applicant that the principle of variable geometry
is in harmony with the requirement for consensus in decision making.
Submissions on behalf of Burundi

25. In Burundi’s submission, the principle of variable geometry may be questionable in
practice in view of the mandatory requirement of decision making by consensus in all
executive organs of the East African Community. To Burundi, it cannot be possible
to move together and decide by consensus while it is at the same time allowed to go at
different speeds. As far as Burundi is concerned, the principle of variable geometry can
apply and allow the integration process only if there is a clear provision which regulates
Advisory Opinion
105
decision making by specifying certain new required quorum of representation in

meetings. Burundi maintained that in practice, there remains a controversy between
application of the principle of variable geometry and the principle of decision making
by consensus by all Partner States. Accordingly, Burundi was categorical that the two
principles are not in harmony as far as practice is concerned.
26. With regard to the second issue, Burundi applied similar arguments as the ones just
advanced above and concluded that variable geometry cannot apply to guide the
integration process in light of the requirement of consensus in decision making.
27. As regards the third issue, Burundi’s position was that unanimity requires complete
agreement by all Partner States on discussed issues while consensus in decision-
making requires flexibility in favour of quick decision making and the integration
process. It was Burundi’s contention, as we understood it that, in the latter event, the
requirement of decision-making by consensus necessitates unanimity of all Partner
States except the one which has taken an option of applying the principle of variable
geometry.
Submissions on behalf of Kenya

28. Counsel for Kenya referred to various dictionary definitions of the term ‘consensus’
and noted that they tended towards a general agreement or majority view, not
necessarily amounting to unanimity. As regards the principle of variable geometry,
he submitted that it is a strategy allowing negotiations of one or more particular
issues to lead to an agreement.
29. Counsel referred to the European Community and identified proponents of variable
geometry as falling into two camps:
a) Integrationists – impatient to accelerate the process of unification and unwilling
to be held up by the ‘slowest ship in the convoy’ to ensure there is no regression to
national individualism.
b) Countries that wish to slow or halt the federal moment but are prepared to allow
others to go ahead, provided they themselves can be left out of policies they
consider unsuited to their national interest.
30. In further reference to the European Union, Counsel identified opponents of variable
geometry as also falling into two camps:
a) Those who fear it will be an excuse for creating a privileged inner circle, a ‘top
table’ of decision makers from which they will be excluded.
b) Those who suspect that their exemptions will prove transient and that sooner or
later they will be sucked into an unwanted process of ever deeper integration.
31. Counsel identified, also within the European Community, a middle group comprising
members from both sides of the debate, i.e. those who believe that institutionalized
flexibility may lead to ultimate breakup of the European Community or to its
transformation into a ‘mere’ free trade area.
32. Counsel noted from the formulation entitled ‘close cooperation’ in the Amsterdam
Treaty that groups of Member States wishing to act together using the European
Community’s institutions could ‘as a last resort’ do so by qualified majority vote in
the Council of Ministers, provided none of the nonparticipants exercised a veto at
Head of Government level. Counsel also noted that other conditions of application of
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the principle of variable geometry included the following:
a) That the participants must represent a majority of Member States.
b) A right of deferred participation by those who chose to stay out initially.
33. The same Counsel also noted from the European Community experience that
practical realities on the ground led to the Luxembourg compromise, under which
it was conceded that decisions affecting a vital national interest would have to be
unanimous even if the Treaty specified majority voting. He added, however, that the
Luxembourg compromise was virtually abolished by the 1980’s in favour of majority
voting. Counsel, instructively, reported that the unanimity principle still exists for:
a) Accession to Treaties ad Treaty amendments;
b) Appointments to the European Commission;
c) Changes to the Community’s revenue raising power;
d) Resolution of certain disputes within the European Parliament;
e) Common Foreign and Security Policy; and
f) Cooperation in Justice and Home Affairs.
34. Counsel pointed out, still with reference to the European Community, that the
concept of variable geometry allows countries to opt out of unwanted policies rather
than being obliged to choose between vetoing them or accepting a majority verdict.
35. Turning to the East African Community, Counsel for Kenya submitted that as
far as the Community’s non judicial organs are concerned, their decision making
process is by consensus which, in practice, has meant that there has to be complete
unanimity over an issue. He wondered in the latter regard whether consensus really
means complete unanimity and drew attention in this connection to Chambers 21st
Century (English) Dictionary which defines ‘Consensus’ as the majority view. He
acknowledged the challenges outlined by Applicant’s Counsel as being associated
with the requirement of consensus in decision making and proceeded to compare
and contrast the principles of variable geometry and consensus in decision making.
36. He submitted that the principle of variable geometry is very different from consensus
in decision making and added that variable geometry is a flexibility that permits
Member States in a regional integration arrangement to pursue integration at
different levels in different fields/policy areas, so long as the enhanced integration
contributes to enhancing integration in the regional integration arrangements, and
does not create a barrier to trade or discriminate among Member States. In Counsel’s
view, the principles of variable geometry and requirement of consensus in decision
making can operate together if the scope of where each principle applies is clearly
defined and there is no conflict in scope, otherwise the two cannot be in harmony
with each other.
37. He maintained that the principle of variable geometry can guide the integration
process notwithstanding the requirement of consensus in decision making, provided
the scope of the policy areas in which each will apply are defined. He cited as a living
example the fact that the European Community has two tracks towards integration,
i.e. the body of common rights and obligations which bind all Member States within
the European Community (aquis communautaire) and variable geometry.
38. Counsel pointed out that whereas the East African Community’s Protocol on
Decision-making provides that decisions on the matters specified in Article 2 (1)
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shall be by consensus, the said Article 2(1) does not specifically provide whether
the consensus is unanimous or general majority view. He noted the definition of
consensus in Chambers 21st Century Dictionary already alluded to and also to:
a) Black’s Law Dictionary which defines ‘Consensus’ as a general agreement or
collective opinion; and
b) Wikipedia, The Free Encyclopedia which defines ‘Consensus’ as a group process
that not only seeks the agreement of most of the participants, but also the resolution
or mitigation of the objections of the minority.
39. Having noted that consensus is usually defined as meaning general agreement and
the process of getting to such agreement, Counsel reminded this Court that in the
case of the executive organs of the Community, consensus has been treated as being
synonymous with unanimity. He submitted that the requirement of consensus in
decision making does not necessitate Unanimity unless specifically provided for
in the subject document, as in the case of Article 10 of the North Atlantic Treaty
(NATO) which specifically provides that there has to be a unanimous decision.
40. Counsel observed that in the case of the European Community, the need to
accommodate States with different capacities within the same international
framework gradually triggered various forms of variable geometry. He, however,
noted the danger of unconstrained variable geometry arising from the concern that
the more the Community allows countries to pick and choose the policies they like
and form into small groups of like¬minded countries, the greater the risk that some
fundamental policies will not be addressed by some Member States.
41. In conclusion, Counsel for Kenya submitted that there is uncertainty as to what
consensus in decision making precisely refers to and that the uncertainty is slowing
down the success of the integration process as the Treaty is silent on the issue. He
asked this Court to elucidate what consensus means. He noted that each country
has a different rate of economic growth, different socioeconomic factors and varying
national policies that it takes into consideration when deciding whether or not to vote
in favour of a specific proposal. He asked the Court to advise whether consensus in
decision making refers to a strict 100% majority, 2/3 majority or simple majority; and
that once such clarification is made, it is of paramount importance that the Treaty is
amended to reflect the Court’s decision in order to eliminate confusion and uncertainty
in the future. He maintained that variable geometry is an important principle that
operates side by side with consensus in decision making as it accommodates each
country’s unique features and that as such it should be embraced by the Community
and not ignored by forcing States to adopt blanket proposals which may not be
best suited to their interests. He commended to this Court the sentiments of Judge
Tanaka of the International Court of Justice on the same issue in the West African
case of Liberia against the Union of South Africa, namely: ‘to treat unequal matters
differently according to their inequality is not only permitted but required’.
42. He urged that the Court should define the policies that each Member State must
participate in without derogation, taking into consideration that the Community is
developing beyond issues of economics and governance into fields such as fundamental
rights and freedoms, freedom of movement and information, competition, and the
like. Finally he suggested the policies which in his view should be subject to consensus
108
in decision-making and those which in his view should be subjected to the principle
of variable geometry.
Submissions on behalf of Tanzania

43. Council for Tanzania opened his submissions by taking the adversarial position that
the resolution of the Council of Ministers seeking the Courts’ Advisory Opinion
was not pleaded and that, therefore, it did not form part of the Application before
this Court. This prompted the Court to call for the Council’s resolution, which was
provided and it is reproduced at the start of this Advisory Opinion. Tanzania’s
Counsel recited the three issues identified by the Applicant’s Counsel and noted that
the principle of variable geometry is captured under Article 7(1) (e) of the Treaty.
He also noted the definition of the principle of variable geometry given in the
interpretation Article 1 of the Treaty. He also revisited consensus in decision-making
at meetings of the Council of Ministers as provided for under Article 15 of the Treaty
and noted that vide Article 15 (3) a member of the Council who is a leader of his/her
Partner States’ delegation to a meeting of the Council may record his/her objection
to a proposal submitted for the decision of the Council and that if such objection is
recorded, the Council shall, unless the objection is withdrawn, refer the matter to the
Summit for decision. Council submitted that this Court may, in determining whether
the principle of variable geometry is in harmony with the requirements of decision-
making by consensus, consider the operational principles laid down under Article 7,
the fundamental principles laid down under Article 6 and the procedure for decision
making which is predominantly by consensus.
44. He suggested to the Court that in determining the aforesaid question, the Court may
wish to appreciate that the objectives of the Community are found in Article 5. He
highlighted those objectives, laid down in Article 5(1), as: development of policies and
programmes aimed at widening and deepening cooperation among Partner States
in political, economic, social and cultural fields, research and technology, defence,
security plus legal and judicial affairs – for the Partner States’ mutual benefit.
45. Counsel pointed out that in endeavouring to fulfill the objectives in Article 5, the
Partner States are guided by the fundamental principles laid down in Article 6 which
include: mutual trust, political will and sovereign equality; peaceful coexistence
and good neighbourliness and peaceful settlement of disputes. In his view, the
operational principle of variable geometry, provided for in Article 7(1) (e), flows
from the above fundamental principles, i.e. recognition of the fact that there may
be in existence such groups of members in a larger integration scheme who require
varied developmental speeds. He submitted that those subgroups must be afforded
their pace of development into an integrated Community. He also submitted that
the principle of variable geometry likewise recognizes the existence of varied areas of
integration. It was his view that all the integration processes alluded to above require
the forging of a common stand in attaining the larger objective. He submitted that
the only mechanism that may afford members and subgroups with varied levels
of developmental ability to forge a common voice is that of consensus in decision
making. He drew the Court’s attention to the fact that in embracing both variable
geometry and consensus in decision-making in the same Treaty, the Community
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need not reinvent the wheel as the European Community before it went through a
windy path prior to attaining its present achievements.
46. It was Counsel’s plea that this Court should recognize that the decision by the framers
of the Treaty to adopt consensus in decision making was purposeful to carry on board
all members in its decision-making process. He contended that the decision took into
account the stark reality that each Partner is a Sovereign State and that in the Partner
States’ peaceful coexistence, mutual trust is of the essence. He noted that the people
the Partner States represent are varied in their stages of development and that the
dual mandate of the leaderships of the Partner States to the people they represent on
the one hand and to the Community on the other demands that the leaderships and
their people be heard and their positions respected. He submitted that the Partner
States’ commitment that decisions be made by consensus is in clear accord with
reality on account of their commitment to have a single voice, notwithstanding their
variables in terms of sizes or stages of development. Alternatively, he asked the Court
to look at the two principles as standing alone, each serving a specific purpose but
each complementing the other. He contended that consensus in decision-making is
pivotal to the attainment of the fundamental principles in Article 6 and operational
principles in Article 7 of the Treaty.
47. Revisiting the question of definition of consensus, Counsel pointed out that the
Thesaurus legal dictionary gives an outline of the meaning of consensus to the effect
that is connotes general agreement and contended that consensus means unanimity.
Counsel urged this Court to advise that:
a) the plain meaning of the provisions of Article 12 (3) is that decisions of the Summit
shall be by consensus;
b) the plain meaning of Article 15(3) to the effect that a member of a Partner State’s
delegation to a meeting of the Council of Ministers can, by recording an objection,
block a proposal submitted for the Council’s decision thereby necessitating referral
of such proposal to the Summit, comprising the Heads of State and Government
of the Partner States; and
c) the plain meaning of the provisions of Article 15(4) that, subject to the Protocol
on Decision making, the decisions of the Council shall be by consensus; indicate
the intention of the Partner States to be that consensus should mean unanimity
of all partner States in their decision-making . Counsel asked this Court to take
note of the developments that have taken place in the Sectoral Committee on
Legal and Judicial Affairs where initiative to amend the Treaty on the decision-
making process of the Council has commenced; and submitted that the Council
of Ministers, being a policy organ of the Community, is better placed to manage
the amendments rather than the present judicial recourse. He questioned the
appropriateness of the Council’s decision to seek judicial recourse in what he
considered a pure policy matter which it has power to address; and noted that
both the process of amendment of the Treaty and the seeking of an Advisory
Opinion of the Court are continuing simultaneously. He contended that the object
of the present Application for the Court’s Advisory Opinion is subjudice as the
Council of Ministers directed that the issue of amendment of the Treaty regarding
consensus in decision-making be left to the Sectoral Committee on Legal and
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Judicial Affairs, which, according to Tanzania, is where the matter belongs; and
submitted that this Application for the Court’s Advisory Opinion is an abuse of
the process of the Court.
Submissions on behalf of Uganda

48. Counsel for Uganda opened his submissions by acknowledging that the East African
Community came into being on 7th July, 2000, thereby marking the beginning
(rebirth) of formal collaboration of the East African countries of Kenya, Tanzania and
Uganda in economic and social integration carried on informally over many years in
the various fields of life in the East African region (after the collapse of the previous
East African Community). He noted that the objects of the Community today stand
out on a much broader vision comprising five Partner States following incorporation
of Rwanda and Burundi in the East African Community bloc. He acknowledged that
in pursuit of attainment of its vision of establishing an East African Customs Union, a
Common Market and ultimately a Political Federation, the East African Community
has set itself to ascribe to universally acceptable principles of good governance,
democracy, the rule of law, observance of human rights and social justice. He observed
that in an endeavour to bring the above norms of good governance to fruition, a set of
operational principles were laid down in Article 7 of the Treaty.
49. He noted that the operational principle singled out for purposes of the present
Application is that of variable geometry provided for under Article 7 (1) (e) of the
Treaty and contended that the said principle is subject to the fact that under the
Treaty, any decision made has to be arrived at with consensus and unanimity by all
parties to the Treaty.
50. Counsel revisited the issues framed for determination. He noted the definition of
variable geometry in Article 1 of the Treaty. With regard to consensus, he referred
to the Advanced Learners Dictionary which defines consensus as an opinion that
all members of a group agree with and repeated the core issue raised in the present
Application, i.e. whether the principle of variable geometry is in harmony with the
requirement for consensus in decision-making.
51. He identified the Summit, Council of Ministers and Coordination Committee of the
East African Community as being endowed with specific wide ranging powers to
give general direction as regards attainment of the objectives of the Community and
pointed out that all the three organs have adopted and passed Rules of Procedure
and that the overriding fact in their meetings is that decisions at these meetings are
made by way of consensus. He wondered where this leaves the principle of variable
geometry and submitted that it is one of the potential avenues for actualization or
implementation of policies, visions and objects for which the Treaty was established.
Counsel contended that with regard to the policies formulated in each of the
Community organs, each Partner State is fairly well placed to have a local feel and
understanding of the course of speed or urgency with which it can implement, actuate
or formulate the policies adopted in the Community. In this regard, he maintained
that the East African Community has to give each Partner State a reasonable time
to adopt a method of compliance agreeable to its people and posited that it is the
principle of variable geometry that would allow for this.
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52. Counsel submitted that the principle of variable geometry is in harmony with the
requirement of consensus in decision making since variable geometry would allow
each country to pace changes brought about in the Treaty at a speed and course that
meets and fits unique local conditions of each specific Partner State. He contended
that variable geometry is one of the operational principles to enable the East African
Community established under the Treaty to achieve its mission and goals. It was his
submission that consensus and variable geometry cannot be put at par or side by side;
and that one has to decide on a policy or objective before arriving at variable geometry
which has to take account of practical realities in the different Partner States on the
mode and speed of implementation of the policy.
53. He noted that policies, once conceived, have to be discussed, culminating in decisions
being taken; that Articles 12 (3) and 15 (4) provide for decisions in the Summit
and Council, respectively, by consensus; and that the Protocol on Rules of the
Coordination Committee is also specific in that, vide Rule 13, the recommendations
of the Coordination Committee have to be agreed by consensus. It was his contention
that any decision made in the organs of the Community will only be carried through
with the unanimous agreement of all the Partner States and that it is only after such
agreement is reached that the principle of variable geometry comes into action.
54. Counsel then proceeded to frame what he considered to be the core question arising
from the present application differently, namely:
‘Whether the principle of variable geometry should have an application in the
process of decision making at the level of organs of the Community. In other words,
can decisions between Partner States at the Summit, Council and Coordination
Committee be made using variable geometry?’
55. He submitted that this question cannot be answered in this Court as in his view the
Court is not the vehicle for amendment of the Treaty, nor is it a legislative organ for
the Community. He acknowledged that the present application has noted the fact that
there are delays in arriving at consensus, intransigence associated with determining
consensus, the possibility of vetoes, the fact that there are now five Partner States,
and that these factors delay decision making. It was his contention, as we understood
it, that the option of variable geometry or some other principle being used in the
making of decisions by the Community is one that the governing bodies and the
administrators of the East African Community should consider, but not this Court.
He submitted that the principle of variable geometry can guide the integration
process, notwithstanding the need for consensus in decision-making.
56. On the question whether the requirement for consensus in decision making
necessitates unanimity of Partner States, Counsel referred to the definition of
unanimity in the Oxford Learners Dictionary, namely, ‘… Complete agreement
about something among a group of people…’ and submitted that signatories to the
Treaty are bound to depict a sense of unanimity before a decision is made and that
this is the only manner in which consensus can be arrived at. He concluded that it is
pertinent to have unanimity of all Partner States in decision making.
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Submissions on behalf of the East African Law Society
57. Mr. Deya, Counsel for the EALS acknowledged the East African Council of Ministers
as the policy making body of the Community. He noted that increased integration
under the Community has faced challenges of ever complex negotiations with notable
differences arising between policies of Partner States and the Community’s ambitions
of integration. He saw the principle of variable geometry provided for under Article
7(1) (e) as envisaging flexibility in the integration process and allowing progression in
the East African Community activities by some Partner States and not all. He pointed
out that due to the requirement of consensus as well as the necessity of quorum in
the decision-making processes of the Organs of the Community, it has been implied
that application of the principle of variable geometry may be contestable and that
the principle cannot be relied on to quicken the process of integration since such
decisions can be vetoed and challenged on the ground that they are not consistent
with the Community Protocols.
58. Counsel for the EALS sought to borrow a leaf from comparable institutions outside
the East African Community to show how the principle of variable geometry has
been applied there. In this connection, he noted from the glossary of the official
European Union website at: www.europa.eu that variable geometry is described as a
term used to mean a method of differentiated integration which acknowledges that
there are irreconcilable differences within the integration structure and, therefore,
allows for a permanent separation between a group of Partner States and a number of
less developed integration units. He suggested that such differences might be founded
on aspects related to different sizes, different priorities, different levels of political
development, and differences in economic development, culture and language
which make it difficult for members to meet the criteria set for membership at the
same speeds and depths, this resulting in either deeper integration or making use
of ‘opt-out’ clauses in certain areas. He submitted that variable geometry connotes
an endorsement of a ‘flexible and pragmatic approach’ to integration by States at
different paces depending on their various determinants. He pointed out that the level
of a country’s commitment to the integration process is determined by the depth of
its interest and that variable geometry applies where there is a lack of commonality of
interests and values by the contracting parties who seek to deepen their cooperation
and promote flexibility in decision making and cooperation.
59. It was the contention of Counsel that agreement on enhanced cooperation operates as
multi-lateral agreements within the general principles of the original Treaty and that
any member is free to decide whether or not to join initiatives beyond the original
Treaty. In this connection, he pointed out that in instances where the principle of
variable geometry has been applied; it accommodates countries which feel that their
interests were not being served in certain situations whereas those who wish to pursue
deeper international integration through multilateral agreements in that area could
do so within the framework of the original Treaty.
60. He referred the Court to instances where variable geometry was applied in Europe
such as The European Economic and Monetary Union, The Schengen Agreement
and the European Defence Initiative.
Counsel noted that at the heart of variable geometry in Europe lies the distinction
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between:
a) The core, which includes all members have in common in their integration
programmes;
b) The periphery, which contains those policies that are shared by some but not by all
members of the European Community.
He submitted that variable geometry does not require all members to participate
in all areas of integration and that it should not be interpreted to mean restricted
membership.
61. Turning to the African continent, Counsel for the EALS pointed out that economic
integration in Africa is moving the various economic blocs (pillars) toward an
African Economic Community (AEC). He noted, for instance, that the Treaty of
the Common Market for East and Southern Africa (COMESA) has two important
innovations. Firstly, the concept of multiple speed or variable geometry provides for
a group of countries to move faster in the regional economic integration process than
some of the other countries or at the policy level, like at Southern Africa Development
Community (SADC). He further pointed out that the preamble to the COMESA
Treaty states that the parties were convinced that co¬operation at sub¬regional levels
in all fields of human endeavour will raise the standards of living for the African
Peoples, maintain and enhance economic stability, foster close and peaceful relations
among African States and accelerate the successive stages in the realization of the
proposed African Economic Community and Political Union.
62. In the case of SADC, Counsel for the EALS noted that its common agenda are based
on various principles, e.g. development orientation; subsidiarity; market integration
and development, facilitation and promotion of trade and investment; and variable
geometry. He added that SADC has also implemented a Free Trade Area (the
Southern African Customs Union – SACU) and that under the protocol establishing
the SACU, Angola, the Democratic Republic of Congo and Malawi chose to opt out
of this arrangement.
63. Reverting to the East African Community, Counsel for the EALS noted that neither the
Treaty nor the various protocols define consensus. Relying on Black’s Law Dictionary,
8th Edition, he contended that general consent when reached without objection is
equivalent to consensus and that this implies that all parties are in agreement. He saw
consensus as a decision making process that fully utilized the resources of the group
and acknowledged that it is more difficult and time¬-consuming to reach than a
democratic vote or an autocratic decision and complete unanimity is rarely possible.
64. He invited this Court to apply Article 31 (1) of the Vienna Convention on the Law of
Treaties in interpreting the principle of variable geometry, i.e. interpret the principle
in good faith in accordance with the ordinary meaning to be given to the terms of
the Treaty and in the light of its object and purpose. He urged the Court to apply
the principle of harmonious construction in interpreting the principles of variable
geometry and consensus in decision making. It was his submission that there is no
conflict in application of the principle of variable geometry and the requirement for
consensus in decision making. He pointed out that the requirement for consensus
in decision-making has been stressed in the Treaty considering the history of the
former Community which collapsed, inter alia, as a result of lack of political will
114
and mistrust. He submitted that in the short-¬term consensus in decision making is
necessary in order to get all Partner States on board in the integration process.
65. It was, however, his contention that in regional organizations, decision-making by
application of variable geometry should be the exception rather than the norm.
66. Counsel for the EALS further submitted that the principle of variable geometry
applies to guide the integration process, the requirement of consensus in decision-
making notwithstanding as in his view the requirement of decision-making is not
necessarily inconsistent with the principle of variable geometry. He also urged this
Court to advise the East African Community to consider amending the Treaty and
Protocols to provide for application of the principle of variable geometry in specific
areas of activity.
67. As to whether the requirement of consensus in decision-making necessitates
unanimity of the Partner States, Counsel for the East African Law Society submitted
that the words ‘unanimity’ and ‘consensus’ substantively mean the same thing.
Consideration of the Issues Raised in the Application and Opinion of the Court
68. Our Opinion on issues (i) and (ii), namely:
i) Whether the principle of variable geometry is in harmony with the requirement
on consensus in decision-making;
ii) Whether the principle of variable geometry can apply to guide the integration
process, the requirement on consensus in decision-making notwithstanding; is as
follows:
69. The principle of variable geometry is defined in Article 1 of the Treaty to mean ‘… the
principle of flexibility which allows for progression in cooperation among a subgroup
of members in a larger integration scheme in a variety of areas and at different speeds.’
70. It is one of eight Operational Principles of the Community provided under Article 7
as
‘The Principles which shall govern the practical achievement of the objectives of the
Community….” Article 7(1) (e) describes it as “…the Principle of variable geometry
which allows for progression in co-operation among groups within the Community
for wider integration schemes in various fields and at different speeds.’
71. The term consensus is not defined in the Treaty. We have, therefore, sought guidance
from sources outside it.
Wikipedia, The Free Encyclopedia, provides that ‘Consensus has two common
meanings. One is a general agreement among the members of a given group or
community, each of which exercises some discretion in decision making and
follow¬up action. The other is a theory and practice of getting such agreements.
Achieving consensus requires serious treatment of every group member’s considered
opinion. Once a decision is made it is important to trust in members’ discretion in
follow¬up action. In the ideal case, those who wish to take up some action want to
hear those who oppose it, because they count on the fact that the ensuing debate will
improve the consensus. In theory, action without resolution of considered opposition
will be rare and done with attention to minimize damage to relationships.’ [Source:
http://en.wikipedia.org/wiki/consensus].
72. We have also, in interpreting the principle of variable geometry and the requirement
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115
of consensus in decision-making as used in the Treaty sought guidance from the

Vienna Convention on the Law of Treaties which provides, vide Article 31, inter alia,
as follows:
‘Article 31: General rule of interpretation
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.’
73. Having carefully considered the submissions of learned Counsel, the above definitions
and interpretation guidelines, we opine as follows:
Variable geometry is in harmony with the requirement for consensus in decision-
making if applied appropriately.
74. Consensus as applied in the Treaty and Protocols referred to in this Application is
purely and simply a decision-making mechanism in Summit, Council and in the
other executive organs of the Community while variable geometry as used therein is
a strategy for implementation.
75. It is the Court’s opinion that decisions in any of the executive organs of the Community
are made with two aspects in mind. The first aspect is that a decision is made on the
basis of it being consistent with the objectives of the Treaty and desirable at the time.
At this level the basis of making the decision is consensus.
76. The second aspect is the implementation of what has been decided as, in our view, a
decision that will not be implemented is not worth the paper on which it is written.
77. With this aspect of implementation comes the practical realities such as the vital
national interests, the negotiations, the give and take and consultations that each
Partner State will inevitably have to take care of for the good of the Partner State and
ultimately that of the Community.
78. Consensus in making the decision will then be tailored to the elements just above
highlighted and a suitable operational principle, which may well be variable geometry,
will be agreed upon to govern the practical implementation of that particular decision.
79. Partner States may agree on implementation at different speeds due to different
readiness levels or different priorities, some may choose to opt out of implementation
altogether due to national realities, yet others may decide to ‘opt out’ and at a future
time they will ‘opt in’. All these will be agreed by the Partner States, by consensus.
80. As submitted by Counsel for the Community as well as Counsel for EALS, the
principle of variable geometry has been internationally applied to deepen integration.
Examples include:
a) SADC: Under the Protocol establishing the Southern African Customs Union
within the Free Trade Area of SADC, the Republic of Angola, The Democratic
Republic of Congo and The Republic of Malawi chose to opt out of the Customs
Union.
b) Schengen -The 1985 Schengen Agreement, and the 1990 Schengen Convention
which supplemented it, relate to the free movement of persons among the
signatories and the Schengen States. Since the freedom of movement is guaranteed
within the Union for all persons who are nationals of an EU Member State, it
related to the intra union movement of non EU nationals wishing to move among
Member States.
116
81. The Schengen States have also agreed to establish common controls at their external
borders and adopted a common visa policy. For the signatories, the effect was to allow
the removal of all internal border controls on the movement of persons for both EU
nationals and non-EU nations. It implements complete freedom of movement of all
persons residing in or admitted to a Schengen State. The territory without internal
borders is known as the Schengen Area. Of the 15 “old” Members States at the time
of negotiations, Ireland and the United Kingdom were not willing to remove controls
on the intra EU movement of non EU nationals, and they retained their national
border controls on the movement of persons from other EU member States.
c) Monetary Union - Provision for a Monetary Union was formulated in the Maastricht
Treaty on European Union of 1992 though the agreement was preceded by three
stages and the initial Monetary Union did not come into effect until 1 January
1999. The European Economic and Monetary Union (EMU) involve adoption of
a common currency (the Euro) and a common monetary policy administered by
a common central bank (the European Central Bank or ECB). Member States that
are not members of EMU retain their own currencies and central banks. At the
time of its formation 12 of the 15 Member States opted in; the three member
states that did not sign were the United Kingdom, Ireland and Denmark. Member
States opting in to the EMU must meet specified conditions. They must meet a
detailed set of convergence criteria and they must have their national currency in
the European Exchange Rate Mechanism (ERM II) for two years.
d) EU Social Policy agreement. A third example in the EU is the 1991 Social Policy
Agreement. It set out the policy objectives for the 1889 Social Charter relating to
employment and working conditions and other social policies. 11 of the then 12
Member States signed this agreement. The United Kingdom opted out (or, more
accurately, did not opt in). Following the election of a new Labour Government
in 1997, the United Kingdom announced that it would drop its opt out. The Social
Policy Agreement was then incorporated into the Social Chapter of the EC Treaty
through the Treaty of Amsterdam.
82. Looking at the three examples together, one feature is that, at the time of their
formation, they involved different subsets of the members of the EU. The UK is
the only country that opted out of all three. Another feature is that all involved the
adoption of common policies in one policy area.
[Source: “The Variable Geometry Approach to International Economic Integration” by
Peter Lloyd, University of Melbourne].
83. The Principle has also been incorporated in Integration Treaties. A case in point is
its incorporation in the Treaty of the European Union by virtue of Article 43 under
the title “Provisions on Enhanced Cooperation.” We quote a few excerpts to illustrate
this incorporation:
‘Article 43: Member states which intend to establish enhanced cooperation between
themselves may make use of the institutions, procedures and mechanisms laid down
by this Treaty and by the Treaty establishing the European Community provided that
the proposed cooperation:
a) aimes at furthering the objectives of the Union and of the Community, at protecting
and serving their interests and at reinforcing their process of integration;
Advisory Opinion
117
b) respects said Treaties and the single institutional framework of the Union; does
not constitute a barrier to or discrimination in trade between the Member States
and does not distort competition between them;
c) respects the competences, rights and obligations of those member States which do
not participate therein.’
‘(i) Article 43(b)
84. When enhanced cooperation is being established, it shall be open to all member States.
It shall also be open to them at any time, in accordance with Article 27e and 40b of
this Treaty and with Article 11a of the Treaty Establishing the European Community,
subject to compliance with the basic decision and with the decisions taken within
that framework. The Commission and the member States participating in enhanced
cooperation shall ensure that as many Member States as possible are encouraged to
take part.’
85. The Partner States of the East African Community may wish to study, and possibly
emulate some of the examples of application of these concepts to deepen integration.
86. The Court finds that the principle of variable geometry, as its definition suggests, is
a strategy of implementation of Community decisions and not a decision making
tool in itself. Indeed as already noted, it appears in Article 7 of the Treaty only as one
of the operational principles “…that shall govern the practical achievement of the
objectives of the Community…’.
87. The Court is of the opinion, therefore, that the principle of variable geometry can
comfortably apply, and was intended, to guide the integration process and we find no
reason or possibility for it to conflict with the requirement for consensus in decision-
making.
88. It was also suggested by a number of learned Counsel, and the Court agrees, that
variable geometry should be resorted to as an exception, not as the rule, as indeed
institutionalized flexibility might lead to break¬up of the Community or its
transformation into “a mere free trade area”. Even in the European Union where
its application is incorporated into law Article 43b of that law provides conditions
precedent for it to apply. It reads, “…Enhanced cooperation may be undertaken only
as a last resort, when it has been established within the Council that the objectives of
such cooperation cannot be attained within a reasonable period by applying relevant
provisions of the Treaty.”
89. Also, in applying the principle, the Community might wish to borrow a leaf from the
European Union “core and periphery” approach which requires that Partner States
agree on certain areas over which the principle can apply and areas over which it
cannot.
90. Difficulties arise, in the Court’s view, where consensus in making a decision is equated
and/or juxtaposed to consensus in implementing it and is debated as one and the
same issue in the process of decision-making , as Partner States will hesitate to take
a decision whose simultaneous implementation they may not undertake due to their
respective practical realities.
91. It is the Court’s opinion, and we so advise, therefore, that for avoidance of internal
conflict and a possible emergence of mistrust among the Partner States, and in
accordance with the Treaty provisions above discussed, decisions should be taken
118
with the above two aspects in mind and simultaneous implementation thereof need
not be forced upon an unready Partner just as refusal or delay of implementation
thereof need not be used to block a ready Partner or Partners.
92. It is the Court’s view based on the submissions that problems associated with
obtaining consensus stems from hesitation to take particular decisions, not rejection
thereof, as once a decision is consistent with the objectives of the Treaty there is no
room left for rejecting it as such rejection would be tantamount to rejection of a
particular Treaty provision. What seems to cause this hesitation is the requirement,
inherent in decisions made, for simultaneous implementation by all Partner States.
93. Simultaneous implementation is impracticable in some circumstances and Partner
States cannot be expected to operate within such strait jacket or one size fits all
situations. Variable geometry is, therefore, intended, and actually allows, those Partner
States who cannot implement a particular decision simultaneously or immediately to
implement it at a suitable certain future time or simply at a different speed while at
the same time allowing those who are able to implement immediately to do so.
94. As Tanaka J put it in ICJ Reports 1966, page 6 “… to treat unequal matters differently
according to their inequality is not only permitted but required”.
95. The upshot of the Court’s above analysis of the concepts of consensus in decision-
making and variable geometry is that consensus is fine at policy level. Take as an
example the need for a superhighway linking Tanzania, Kenya, Uganda, Rwanda
and Burundi. The mutual benefits of such a joint project are immediately clear to all
the Partner States and none would require much persuasion to sign up for it. Since
the project is a policy issue in line with objectives of the East African Community
Treaty, there must be consensus at policy level for all Partner States to endorse
the project. The policy having been agreed upon by consensus, the programme of
implementation of the policy may, however, be agreed upon by the application of the
principle of variable geometry bearing in mind the capacity of each Partner State to
implement its portion of the task of constructing the superhighway within a given
time frame. The Partner States may agree, for instance, on a 5 year time frame for all
portions of the superhighway to be completed. Two Partner States with the ability
to start in the first year may go ahead and start; a third partner State may be able to
start its portion in the second year; while the remaining two Partner States may be
able to start only from the third year. In this scenario, both concepts of consensus
and variable geometry are at play in the same decision, each playing its key role i.e.
consensus in deciding to build the highway and variable geometry in deciding the
implementation of the programme.
96. Another illustration may be taken from a project for modernization of the fishing
industries in Kenya’s and Tanzania’s exclusive economic zones within the Indian
Ocean. The project may not be of immediate or direct interest to the land locked
Partner States within the East African Community. Kenya and Tanzania may enter
into bilateral arrangements to go into the project as a joint venture, in the context
of the objectives of the Community with full support of the non-participating land
locked Partner States.
Advisory Opinion
119
Our Opinion on issue (iii), namely:

97. Whether the requirement of consensus in decision-making implies unanimity of the
Partner States.
Wikipedia defines unanimity as follows:
‘Unanimity is complete agreement by everyone. When unanimous, everybody is of
same mind and acting together as one. Many groups consider unanimous decisions
a sign of agreement, solidarity, and unity. Unanimity may be assumed explicitly after
a unanimous vote or implicitly by a lack of objections.’ [Source: http://en.wikipedia.
org/wiki/unanimity].
Achieving consensus by unanimity is a desirable ideal but, in our opinion, rarely
possible.
98. Consensus, and not unanimity, is provided for in the Treaty and Protocol on Decision
Making as the basis for decision-making . Articles 12(3), 15(4) of the Treaty, Article
2 of the Protocol on Decision Making and Rule 13 of the Rules of Procedure of the
various organs are all clear on this. The definition of both terms leaves us in no doubt
that consensus does not mean unanimity.
Equating consensus to unanimity in decision making in the executive organs of the
Community is a procedure that has obtained for years and it would appear from the
instant Application that all has not been well.
99. We observe that, as integration deepens, different Partner States continue to have
differing attachments to certain policies and their citizens continue to have differing
passions towards such policies. In that environment, understandably, choices become
tougher, decisions become harder and the perceived unanimity enjoyed in decision
making over the years begins to be less forthcoming. This in our view explains the
emergence of this debate at this particular time.
100. Implying that consensus in decision-making as used in the Treaty means
unanimity of Partner States is a mere perception based on the said practice as we
have shown. Such perception is, in our view, neither supported by the Treaty nor the
definitions surveyed.
101. As stated above, consensus as it stands in the Treaty, the Protocol on Decision
Making and the Rules of Procedure of the various organs, is undefined and its
application is unclear. Articles 12 (3), in 15 (4) and 148 of the Treaty, Rule 13 of the
of Rules of Procedure for the Summit of the Heads of State or Government, Rule 13
Rules of Procedure for the Council of Ministers, Rule 13 of the Rules of Procedure for
the Coordination Committees, Article 2 of the Protocol on decision making simply
state “consensus” plain and naked.
102. It is not defined in terms of unanimous, absolute, qualified or simple majority. It
is not defined in relation to differing weights of particular decisions. It is not defined
in relation to the various executive organs of the Community according to their
hierarchy. If anybody was to pose the question “How is consensus applied under
the Treaty and Protocol?” we are afraid the answer would be guesswork. We were
not shown any answer and we found none. Little wonder therefore that this vacuum
was filled by unanimity. Consequently, the Court is of the opinion that the cure for
this defect does not lie in equating it, from the blue, with unanimity. Rather it lies in
amending the relevant instruments.
120
103. Further, it is our considered opinion, from the above discourse, that consensus
does not mean unanimity either from ordinary English meanings or from legal
dictionaries and it does not imply unanimity when used in the Treaty, the Protocol
on Decision Making or the Rules of Procedure of the various organs. They are two
different concepts.
a) Whether Article 15(3) of the Treaty implies that consensus is synonymous with
unanimity
Article 15(3) was raised during submissions as evidence that consensus as used in the
Treaty refers to unanimity. The Article provides that: “…A member of the Council
who is the leader of his or her Partner State’s delegation to a meeting of the Council,
may record his or her objection to a proposal submitted for the decision of the
Council and, if any such objection is recorded, the Council shall not proceed with the
proposal and shall unless the objection is withdrawn refer the matter to the Summit
for decision.”
104. With due respect, this Court finds Article 15(3) to be a specific provision on
how an objection in the Council of Ministers is handled. Suffice it to state that the
position of the Treaty as we construe it is that either such objection is withdrawn and
a decision is taken in Council or it is not withdrawn and the Council takes a decision
to refer the matter to the Summit ‘for decision’. In the Summit, that decision will be
made by consensus in accordance with Article 12 (3). Either way a decision will be
made, by a competent organ of the Community, by consensus.
105. The import of Article 15 (3), therefore, in the Court’s view, is to provide the
above recourse only and neither means nor implies that consensus is synonymous
with unanimity.
b) Whether the exception to consensus created by Article 148 of the Treaty implies
unanimity
106. During the hearing, the exception created by Article 148 was raised as evidence
that consensus as used in the Treaty actually refers to unanimity because of the title
and content of the said Article which reads:
“Exception to the Rules of Consensus
Notwithstanding the provisions of paragraph 3 of Article 12 of this Treaty, the views
of the Partner State being considered for suspension or expulsion shall not count, for
the purposes of reaching a decision under the provisions of Articles 146 and 147 of
this Treaty.”
107. The Court, with due respect, does not agree with this interpretation. The import
of Article 148 is that consensus will be achieved as required, but for purposes of
achieving that consensus the “views” of the Partner State being expelled or suspended
will not count.
108. In other words, all Partner States, except the Partner State being sanctioned, will
participate in reaching the decision. And this is, in the Court’s view, irrespective of
whether the views of the Partner State being sanctioned are supportive of the sanction
or not. It does not imply even here, that consensus is synonymous with unanimity
and we advise accordingly.
c) The reported amendment of the Treaty
109. It was reported during submissions that there is a parallel process of amending the
Advisory Opinion
121
Treaty to take care of the issue of the decision¬-making process in the Community’s
executive organs. In particular the United Republic of Tanzania and the Republic of
Rwanda submitted that this was purely a policy matter to be addressed by the Council
rather than the Court; and that this application was not only redundant but also sub
judice and an abuse of Court process.
110. The Court was not given any evidence, and it did not find any, that the two
processes might be inconsistent or incompatible with each other and that the
Application is an abuse of the process of this Court. The Court considered the above
submission and is of the view that the process of amending the Treaty reported to
be underway in the Executive Organs of the Community, as well as this Application
for an Advisory Opinion are perfectly compatible. The application was brought to
this court on a directive of the Council, the very organ reported to be overseeing
the said amendment. It was properly brought and the Court has jurisdiction. It is
our considered view also that the reported amendment process is not “subjudice”
as the term refers to a Court process that is pending “before the Court or Judge for
determination” (see Black’s Law Dictionary, 8th Edition, page 1466).
111. Conclusion: In conclusion we answer issues (i) and (ii) in the affirmative and
issue (iii) in the negative. We advise accordingly.
****
Reference No.1 of 2008
Modern Holdings (EA) Limited And Kenya Ports Authority
Johnston Busingye, PJ; Mary Stella Arach -Amoko DPJ; John Mkwawa J, Jean Bosco
Butasi J Benjamin Patrick Kubo J
February 12, 2009
Court’s lack of capacity - Jurisdiction over institutions of the Community - Whether the
Respondent could be had be sued be fore the Court - whether the Court hadjurisdiction
to entertain the reference
Articles: 9 (2) 23(1), 27 and 30, of the EAC Treaty, Rule 20 of the EACJ Rules of
Procedure 2004- the East African Community Customs Management Act of 2004 -
East African Community Customs Management Regulations of 2006
The Applicant , a company incorporated and registered in the United Republic

of Tanzania and carrying on business of importing a range of products, imported
twenty one containers of assorted Masafi fruit juices and mineral water through the
port of Mombasa in December 2007 and January 2008. These were perishable goods
with a limited shelf life.
The consignment could not be cleared from the port, which is managed by the
respondent, within the stipulated time due to the post election violence in Kenya
which disrupted the operations at the port at the time. When operations resumed,
the Applicant expected that the consignments would be cleared as a matter of priority
given their perishability.
Without the Applicant s consent, the Respondent contracted and had warehoused the
consignment at the Makupa Transit Shade Ltd (MATS). Which had no contractual
obligation with the Applicant. The respondent then insisted that the Applicant
clears its consignment through MTS Ltd and so the Applicant was unable to enjoy
the customs warehouse rent waiver granted by the Government of Kenya and its tax
agencies. In addition, the Respondent required the Applicant to clear twenty one
containers be cleared within three days which as a logistically impossible demand
and all containers could not be cleared within that period. Contrary to the waiver, the
Respondent insisted that all customs warehouse rent should be paid in full and thus
the Applicant suffered loss as the products became unfit for human consumption.
Held:
1. The Respondent was not among the institutions of the Community created under
Article 9 (2), or a surviving institution of the East African Community. It was created
by the Republic of Kenya, a Partner State, and not by the Summit.
2. The mere fact of rendering services at Mombasa port and serving the East African
Modern Holdings (EA) Limited v Kenya Ports Authority
123
Partner States and citizens does not ipso facto make it an institution of the Community
as the service must be such a service created by the Summit under Article 9 (2) of the
Treaty.
3. The reference was not properly before the Court due to lack of capacity of the
respondent under Article 30 of the Treaty and the court had no jurisdiction to
entertain this reference.
Cases cited:
Anyang’ Nyong’o and Others v The Attorney General of The Republic of Kenya and
Others, EACJ Reference No. 1 of 2006
Christopher Mtikila and Others v The AttorneyGeneral of the United Republic of
Tanzania, EACJ Reference No.2 of 2007
Katabazi and Others vs The Attorney Generalof The Republic of Uganda and The
Secretary General of the East African Community, EACJ Reference No.1 of 2007
Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd [1969] E.A 696 at
700 Others, Reference No.3 of 2008
Owners of Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [KLR] 1
The East African Law Society and Others v The Attorney General of the Republic of
Kenya, EACJ Reference No 3 of 2007
Ruling
1. The Claimant is a company incorporated and registered in the United Republic

of Tanzania, having its residence and registered offices at Sokoine Road, Arusha,
Tanzania. It has perpetual succession, a common seal and power to sue and be sued
in its corporate name. At the material time, it was an importer and sole distributor of
Masafi products, which include high quality fruit juices and mineral water in the East
Africa Region. The products were imported from a company called Masafi Mineral
Water Co. (LLC) based in the United Arab Emirates.
2. The Respondent, Kenya Ports Authority (KPA) is a statutory corporate body,
established under the provisions of section 3 of the Kenya Ports Authority Act (KPA
Act), Cap. 391 Laws of Kenya. Its headquarters are at Mombasa, Kenya. Its duties are
inter alia, to act as a warehouse provider and to store goods for persons making use of
Kenyan ports. In addition, the Respondent has the statutory obligation to determine,
impose and levy rates, fares, charges, dues or fees for its services or for use, by any
persons, of its facilities.
3. The Claimant filed the reference in this Court on the 25th September 2008, under
Article 30 of the Treaty for the Establishment of the East African Community (herein
referred to as “the Treaty”), Rule 20 of the East African Court of Justice Rules of
Procedure, the East African Community Customs Management Act of 2004, and the
East African Community Customs Management Regulations of 2006.
4. In the reference, the Claimant avers that it imported 21 x 40ft containers of assorted
Masafi fruit juices and mineral water which landed at the Mombasa port on diverse
days in December 2007 and January 2008. The Claimant further avers that the
consignment could not be cleared from the port within the stipulated time due to the
124
post election violence experienced in Kenya during the aforementioned period which
disrupted the operations at the port. It avers that the Respondent was fully aware that
the consignments consisted of perishable goods with limited shelf life and in order to
cover for the period lost due to the disruptions of port operations, it was imperative
and legitimately expected that the clearance of the Claimant’s consignments would be
effected as a matter of top priority on resumption of port operations.
5. The Claimant contends that in recognition of this fact, and in the East African
Community spirit, the Kenya Revenue Authority (KRA) in accordance with
Regulation 85 of the East African Community Customs Management Regulations
of 2006 recommended on the 28th April 2008 to the Minister for Finance a waiver
of customs warehouse rent of 80%. It avers further that on the 8th May 2009 (he
must have meant 2008), the Government of Kenya acted on the recommendation and
waived 80 % of the customs warehouse rent up to 13th March 2008. The Complainant
complains that unknown to it and without its consent, and/or without justification,
the Respondent had warehoused its consignment at the Makupa Transit Shade Ltd.
(MTS Ltd.), an entity contracted and/or which entered into some arrangement with
the Respondent, but which had no contractual obligation with the Claimant.
6. The Claimant avers that the Respondent unlawfully and unjustifiably insisted that the
Claimant must clear its consignment through MTS Ltd, with the direct consequence
that the waiver granted by the Government of Kenya and its tax agencies could not
be enjoyed by the Claimant. The Claimant added that the said company imposed
unreasonable clearance conditions that all twenty one (21) containers be cleared within
three (3) days with a verbal waiver of 90% of the customs warehouse rent, making it
logistically impossible to clear the consignments within the imposed duration apart
from only six (6) out of the twenty one (21) containers. The Complainant contends
that, MTS Ltd, after the expiry of the three (3) days period refused to allow the
Claimant to remove the rest of the consignments, notwithstanding the arrival of nine
(9) trucks from Tanzania and an additional six (6) trucks sourced locally to transport
the said containers, unless and until the customs warehouse rent was paid in full,
thereby overriding the waiver granted by the Kenya Government.
7. The Claimant contends further that the Respondent and/or its agent MTS Ltd,
arrogantly and blatantly ignored and/or unreasonably refused to comply with the
directive issued by the Government of Kenya. It avers that through no fault of its own
and as a direct consequence of the Respondent acting in cohorts with MTS Ltd, it has
suffered colossal pecuniary losses in that:
• All products in the aforesaid containers have expired and are no longer fit for
human consumption ;
• It’s sales and distribution agreement dated 12th October 2008 with Mineral Water
Co[ LLC], a high quality and reputable juice supplier ,has been terminated with no
option for renewal;
• Its bank guarantee of US $ 1,000,000 was utilized by Masafi Mineral Water
Co.(LLC) to liquidate outstanding invoices;
• Bankers withdrew credit facilities, and threatened to foreclose on its collateral so
as to realize security;
• Its reputation as a trading entity has been gravely injured and eroded;
125
• It incurred expenses in hiring fifteen (15) trucks, nine (9) of which came from
Tanzania to carry the consignments;
• It incurred expenses in purchasing air tickets, on road transport , hotel
accommodation and meals in following up clearance of the aforesaid consignments
from the custody of the Respondent;
• It incurred unnecessary demurrage charges which continue to be incurred at a
rate of US $ 50 per day; and
• It lost profit due to failure to deliver the consignments, and interest on monies
borrowed from banks to pay its creditors.
8. Consequently, the Claimant claims from the Respondent and prays for the following
orders from the Court:
“(1) A declaration that the decision and the action of the Respondent in refusing to
clear and release the Claimant’s consignments is unlawful and an infringement
of the letter and spirit of the Treaty and The East African Community Customs
Management Act and Regulations.
(2) A declaration that no further customs warehouse rent is payable to the Respondent
by the claimant on the 15 containers in their custody, whose contents and/or
products have expired.
(3) Loss of the consignment through expiry of the product. $ 819,554
(4) Loss of profit for January to June 2008 $ 1,395,816
(5) Special damages $ 22,500,000
(6) Interest on borrowed funds up to June 2008 $ 28,749
(7) Expenditure on following up clearance $ 75,000
Sub Total $ 24,819,119
(8) Loss of profit for the remaining period of the sales and distribution agreement
which is 31.12.2010, at a rate of $ 232,636 per month for 30 months from 01.07.2008
totaling $ 6,979,080
(9) General damages to be assessed by the Court together with interest thereon at
rates to be determined by the Court.
(10) Interest on items (3),(4),(5),(6)&(7) herein above and/or the decretal sum from
01.07.2008 to the date of full payment at commercial rates and/or such rates as
this Honourable court may deem fit to grant.
(11) Any other relief that this Honourable Court may deem fit to grant.
(12) Costs of this reference be borne by the Respondent in any event.”
9. In its response filed on the 27th November 2008, the Respondent admitted the
description of the parties, its statutory duties under the KPA Act, the objectives of the
Treaty as stated in the last four recitals of the preamble as cited, the purpose of the
promulgation of the East African Community Customs Management Laws, namely,
to facilitate trade and business in the Partner States, the importation of the cargo
by the Claimant on the dates and in the quantities stated as well as their intended
destination. The Respondent, however, denied each and every allegation contained
in the reference as though the same were set out verbatim and traversed seriatim. It
described the reference as frivolous, vexatious and a grave abuse of the process of the
Court, and urged the Court to dismiss the same in limine.
126
10. The response also gave notice of a preliminary objection seeking the dismissal in
limine of the reference on the grounds that:
(i) This honourable Court lacks the jurisdiction to entertain the nature of the matter
contained in the reference.
(ii) The Respondent lacks the capacity to be sued as a legal person in this honourable
Court.
(iii) The applicant lacks the locus standi to bring the reference before the Court.
11. When the reference came before the Court on 20th January 2009 for scheduling
conference, the Court ruled that the preliminary objection be dealt with straightaway,
since it was a fundamental point of law which could, if upheld, dispose of the
reference at this stage of the proceedings. The Court was alive in taking this step, to
the observation made by Law,J.A of the then E.A Court of Appeal in Mukisa Biscuits
Manufacturing Co Ltd – vs - West End Distributors Ltd [1969] E.A 696 at 700 where
he stated that:
“So far as I am aware, a preliminary objection consists of a point of law which has
been pleaded, or which arises by clear implication out of the pleadings and which if
the jurisdiction of the Court,….”
12. Additionally, this Court took cognizance of the fact that jurisdiction is basic to its
adjudicatory function, such that if jurisdiction is challenged and made an issue, it
ought to be addressed and determined forthwith. The rationale for this was aptly
summed up by Nyarangi, J.A. of the Kenya Court of Appeal (as he then was) in
Owners of Motor Vessel “Lilian S”- vs- Caltex Oil (Kenya) Ltd [KLR] 1 when he stated
at page at page 14:
“…. I think that it is reasonably plain that a question of jurisdiction ought to be raised
at the earliest possible opportunity and the court seized of the matter is then obliged
to decide the issue right away on the material before it. Jurisdiction is everything.
Without it, a Court has no power to make one more step. Where a Court has no
jurisdiction, there would be no basis for a continuation of proceedings pending other
evidence….”
13. Submissions were made by Mr Geoffrey Imende and Mr Paul Muite, Counsel for the
Respondent and Claimant, respectively. The Court reserved its ruling on the issue till
12th February 2009.
14. The bone of contention from the submissions of both learned Counsel is the
jurisdiction of this Court to entertain the reference and the capacity of KPA as a
Respondent. Spirited submissions were made before this Court on behalf of both
parties.
15. The Respondent’s Counsel submitted that KPA lacks the capacity to be sued in this
Court as a legal person because it is not an institution of the Community. Article
30 of the Treaty provides that a complaint must be against an Act, regulation,
directive, decision or action of a Partner State or an institution of the Community.
The Treaty defines an institution of the Community in Article 9 (2) of the Treaty as
such bodies, departments, and services as may be established by the Summit. KPA
was not established by the Summit, it was established by the Republic of Kenya, a
Partner State, under the provisions of section 3 of the KPA Act. It was his submission
127
therefore that this Court has no jurisdiction to entertain and determine this reference.
Counsel for the Respondent abandoned ground (iii) of his objection.
16. Learned Counsel for the claimant on his part maintained that this Court has
jurisdiction to entertain and determine this reference. He submitted that Article 30
of the Treaty is not specific as to who should be a respondent in a reference brought
by legal or natural persons under the said Article. He argued further that in the event
that the Court accepts the argument by the Respondent’s Counsel that the said Article
only applies to Partner States and institutions of the Community as respondents,
KPA can be classified
17. As an institution of the Community by virtue of Article 9 (2) of the Treaty because the
said sub-Article refers to “services”. He pointed out that under Article 93 of the Treaty
which obligates the members of the Community to co-operate in the development
and promotion of port services, the word “services” is used several times and that at
the time the Summit signed the Treaty, the said Article 93 was part and parcel of the
Treaty, and that therefore KPA is a service of the Partner States and the Community.
18. Counsel for the Claimant also stated that one of the reasons why he resorted to this
Court is the failure by the Republic of Kenya to establish a tax appeals tribunal to
which he would have referred the matter before this Court for adjudication.
19. After due consideration of the submissions, it is the Court’s view that the issues for
determination are:
(a) Whether the Court has jurisdiction to entertain the matter complained of in the
reference.
(b) Whether the Respondent has the capacity to be sued in this Court.
20. The Court is in agreement with Mr. Imende that in this case the two issues are
intertwined and is of the view that the matter revolves around the interpretation of
Article 30 read together with Article 27 of the Treaty.
21. The jurisdiction of the Court is conferred by the Treaty. The Treaty describes the role
and jurisdiction of the Court in two distinct but clearly related provisions. In Article
23(1), the Treaty provides:
22. “1.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.”
It then provides thus in Article 27(1):
“The Court shall initially have jurisdiction over the interpretation and application of
this Treaty.”
23. The Treaty also makes provision for reference by natural or legal persons to the Court
under Article 30 on which the preliminary objection is based. It reads:
“Reference by Legal and Natural Persons
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.”
24. 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
128
Treaties”.
Article 31 of The Vienna Convention on the Law of Treaties sets out the general rule
of interpretation of treaties as follows:
“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.
(a) any agreement relating to the treaty which was made between all the parties in
(b) any instrument which was made by one or more parties in connection with
3. There shall be taken into account:
(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 established the
agreement of the parties regarding its interpretation.
(c) any relevant rules of international law applicable in the relations between the
parties.
4. A special meaning shall be given to a term if it is established that the parties so
intended.”
25. This rule has been applied by this Court in for instance, Prof. Peter Anyang’ Nyong’o
and Others - vs – The Attorney General of The Republic of Kenya and Others, Reference
No. 1 of 2006; and in The East African Law Society and Others - vs - The Attorney
General of the Republic of Kenya and Others, Reference No.3 of 2008.
26. The Court has been proactive in the interpretation and application of the Treaty.
For instance in Katabazi and Others - vs - The Attorney General of The Republic of
Uganda and The Secretary General of the East African Community, Reference No.1
of 2007, a similar preliminary objection was raised by Counsel for the Respondents
on the grounds that the reference was a human rights issue, and that the Court had
no jurisdiction under Article 27 (2) of the Treaty in the absence of a protocol to
operationalise the Court’s extended jurisdiction. The Court had no difficulty in
overruling the preliminary objection in question because that complaint did not only
involve the interpretation of the Treaty, but was also basically against the Republic
of Uganda, a Partner State of the Community. That case is distinguishable from the
instant one in that the Respondent KPA is not a Partner State of the Community.
27. The Court has also declined to entertain matters where it has no jurisdiction. (See:
Christopher Mtikila and Others – vs - The Attorney General of the United Republic of
Tanzania, Ref No.2 of 2007).
28. In Prof. Anyang’ Nyongo and Others – vs – The Attorney General of the Republic
of Kenya and Others, Ref. No.1 of 2006, the Court struck out the reference against
three individuals for lack of capacity. The Respondents were sued as the Clerk to
the National Assembly of Kenya, Leader of Government Business of the National
Assembly of Kenya and the Chairman of NARC Kenya, a political party, respectively.
129
Counsel for the applicants had argued that since a natural person has the capacity to
sue in this Court a natural person must also have the capacity to be sued in the same
Court under the Treaty. He had urged the Court to give Article 30 of the Treaty
an interpretation that would bring natural persons who commit misfeasance that
infringe provisions of the Treaty within the ambit of Article 30 to account for their
actions. This is what the Court held at page 7 of the ruling dated 27th November,
2006:
“With due respect to Counsel for the Applicants, it appears to us that enjoining
the 2nd , 5th and 6th Respondents to the reference was under a misconception. 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 connivance, if any, is not
actionable under Article 30 of the Treaty.
29. We think there is merit in the objections. The matters referred to this Court, whose
legality it has to determine relate to the responsibility of the Republic of Kenya as a
Partner State, acting by its National Assembly under Article 50 of the Treaty, to elect
nine members of the EALA. Both the process of selecting the nine members whose
names have been remitted to the 3rd Respondent and the Election Rules under which
they were elected or selected were done by the Republic of Kenya through its National
Assembly. It is for that reason that the Attorney General of Kenya was rightly made
the 1st Respondent.”
30. Applying the above principles to the matter before us, and we find the language of
Article 30 plain and clear. As we have demonstrated earlier on in this ruling, and it is
not in contention by both parties:
31. Article 30 makes provision for reference by any natural and legal person; who is
resident in a Partner State; in respect of the legality of any Act, regulation, directive,
decision, or action of a Partner State or an institution of the Community; on the
grounds that such Act, regulation, decision or action is unlawful or is an infringement
of the provisions of this Treaty.
32. Article 9 (2) contains the following definition of institutions of the Community:
“2. The institutions of the Community shall be such bodies, departments and services
as may be established by the Summit.”
33. The institutions of the Community are enumerated under Article 9 (3). These are:
-The East African Development Bank, The Lake Victoria Fisheries Organization and
surviving institutions of the former East African Community which are defined as
follows on page 10 of the Treaty:
“surviving institutions of the former East African Community” means the East
African Civil Aviation Academy, Soroti, the East African Development Bank, the East
African School of Librarianship and the Inter-University Council for East Africa.”
34. KPA is definitely not among the institutions of the Community created under Article
9 (2), or a surviving institution of the East African Community appearing on the
above list. As such KPA is not one of the respondents envisaged under Article 30 of
the Treaty.
35. KPA is an authority created under section 3 of the KPA Act as a statutory body with
130
perpetual succession, a common seal and power to sue and be sued in its corporate
name. It was created by the Republic of Kenya, a Partner State, and not by the Summit.
The “Summit” means the Summit established by Article 9 of Treaty. Members of the
Summit consist of Heads of State or Government of Partner States. The mere fact of
rendering the nature of the services it renders at Mombasa port, namely, serving the
East African Partner States and citizens, does not ipso facto make it an institution of
the Community. In order to qualify as a service under Article 9 (2) of the Treaty, the
service must be such a service created by the Summit.
36. Further and in respect of the submission by learned Counsel for the claimant
based on Article 93 of the Treaty, the Court finds that the obligation to promote
the development of efficient and profitable sea port services enumerated in the said
Article is an obligation of the Partner States. In this particular case, the obligation lies
squarely on the shoulders of the Republic of Kenya, and not on other implementers
along the way like KPA. In sum, therefore, the reference is not properly before this
Court due to lack of capacity of KPA as a respondent under Article 30 of the Treaty.
37. Finally an allegation was levelled against the Republic of Kenya by Counsel for the
Claimant that the Claimant had to resort to this Court due to failure by the Republic
of Kenya in setting up a tax appeals tribunal to deal with disputes such as the one
before this Court. With due respect to learned Counsel, we are unable to make any
finding on this issue because the Republic of Kenya was not a party to this reference
and the statement was from the bar.
38. Based on the above reasons, we hold that this Court has no jurisdiction to entertain
this reference. We accordingly uphold the preliminary objection raised by Counsel
for the Respondent and dismiss the reference with costs to the Respondent.
****
East African Court of Justice – First instance Division
Attorney General of Kenya And Prof. Anyang’ Nyong’o & 10 others
Johnston Busingye, PJ
October 16, 2009
Christmas vacation and Court Vacation - Court’s unfettered discretion to extend time
– Delay in lodging an application must be sufficiently explained - The right of a litigant
to enjoy the fruits of judgment – Whether the application was made in good faith.
Rule 4 of the East African Court Rules of Procedure, 2004
Upon the conclusion of Reference No.1 of 2006, the Respondents were awarded
costs which were taxed on 19th December 2008. In January 2009, the Respondents
Advocate demanded settlement of the decretal sum but the same was still pending in
April 2009 when the Applicant filed this application seeking an extension of time to
file a Reference contesting the Taxing Officer’s decision. This was ninety days after
the Bill of costs was taxed. The Applicant gave several reasons for the delay including:
the Christmas vacation and consultations with the other government branches.
The Respondents opposed the application asking the court to examine whether the
Applicant had sufficiently and in good faith explained the delay.
Held: The Court’s discretion is exercisable on the basis of evidence and sound legal
principle; and that the duty of placing the necessary evidence before the Court to
enable it exercise its discretion is on the applicant. In order to justify a Court in
extending the time, there must be some material upon which the Court can exercise
its discretion. It must be discernible that the application is made in good faith and
the reasons plausible and candid to pass the test of sufficiency. There was, inordinate,
unreasonable and wanton delay and the explanations offered were insufficient, less
than candid and, in places, highly improbable. The Applicant in this case did not
discharge this duty, the application lacked merit and was dismissed.
Cases Cited:
Ambunda vs Tanzania Harbours Authority (Civ. App. No. 164 of 2005), TZCA
Bogetutu Farmers v Mohamed Hassan Yonis H.C.C.C No. 154 of 1992
Boney M. Katutumba v Waheed Karim, Civil Application No.27 of 2007
Leo Sila Mutiso v. Rose Hellen Wangari Mwangi Civil Application No. NAI 225 of 1997
Mohamed & Muigai Advocates vs Kang’ethe & Company Advocates H.C.C.C. No.234
of 1999
Mwangi v. Kenya Airways [2003] KL P.56
Paul Njoroge vs The Attorney General and others, High Court of Kenya, Misc case no.90
of 2004
132
Ratman vs Cumara Samy (1965) I WLR 10
Samuel Ondieki V Samwel Mageto (2006) KLR
Zam Nakumansi vs Suleman Lule Civil , Supreme Court of Uganda, Application No. 02
of 1999
Ruling
1. The Applicant is the Attorney General of the Republic of Kenya. He is represented

by Mr. Antony Oteng’o Ombwayo Senior Principal Litigation Counsel, Attorney
General’s Chambers, Kenya.
The Respondents are Hon. Peter Anyang – Nyong’o and ten others. They are
represented by Mr. T. J. Kajwang and Ms Judith Sijeny of Kilonzo & Co. Advocates.
This is an application to enlarge time brought under Rule 4 of the Rules of this Court.
Background
2. The facts which gave rise to this application are that this Court, in its judgment of
30th March 2007 in Reference No.1 of 2006, ordered that the claimants (who are the
respondents in the present application) “shall have costs of the Reference to be borne
by the 1st Respondent and to be taxed by the Registrar taking into account that a
single applicant could have presented the reference.”
3. Subsequently the Bill of Costs was lodged and taxed. The Ruling on Taxation was
delivered on the 19th December 2008 by the Registrar of this Court, as Taxing Officer
by virtue of Rule 113 of the Rules of this Court.
4. On the 6th January 2009 the Attorney General of the Republic of Kenya, the applicant
in this application, communicated the contents of the Taxation Ruling to the Clerk
of the National Assembly of Kenya, advised the Clerk on the available options at law
and sought instructions on the way forward.
5. On the dates of 12th and 22nd January 2009 the claimants, through Kilonzo and
co. Advocates, sent written demands to the Attorney General and the Clerk to the
National Assembly, respectively, seeking amicable settlement of the decretal sum or
else recovery proceedings would issue.
6. On the 3rd April 2009 the applicant filed the present application to enlarge time so
he could file, out of time, a Reference on Taxation under Rule 114 of the Rules of this
Court. Rule 114 provides that a Reference on Taxation may be made within 14 days.
This Reference is sought to be filed about 90 days after the Ruling on Taxation was
delivered hence the application to extend time.
7. The application is supported by the affidavit of Senior Principal Litigation Counsel,
Attorney General’s Chambers Antony Oteng’o Ombwayo sworn on 13th March 2009.
The grounds on which the application is based, as appear in the Notice of Motion, as
well as in Mr. Ombwayo’s affidavit, may be summarized as follows:-
1) That the application could not be filed in time due to Christmas vacation that was
being observed by the Staff of the East African Court of Justice and the Registry
was not manned,
2) That the delay in filing the application was occasioned by hardship,
3) That consultations between the office of the Attorney General, the Clerk to the
AG Kenya v Prof. Anyang’ Nyong’o and others
133
National Assembly of Kenya and the Treasury delayed the filing of the application,
4) That time be extended due to the public interest in the case,
5) That the Respondents are not persons of mean resources and therefore no prejudice
will be occasioned to them if the extension is granted.
6) That the Reference is merited as the amount awarded by the Court is excessive and
not founded on any legal basis hence the same ought to be reviewed.
Hearing in Court
8. At the hearing Mr. Ombwayo, for the Applicant, relying on two affidavits and oral
arguments submitted that the two main grounds of this application are inability to
file due to Christmas vacation and inability to file the application due to tragedies
that befell his family necessitating his personal intervention at home. He also told the
Court that there were consultations between the office of the Attorney General and
that of the Clerk to the National Assembly and the Treasury over this matter which
also delayed the filing of the Reference.
9. Canvassing the first of the grounds, learned Counsel submitted that it was within his
knowledge that between 15th December and 5th January the entire staff of the East
African Community go on Christmas vacation. Therefore, he submitted, part of the
14 days expired when the court was on vacation.
10. On the second ground Counsel submitted that “after the vacation” on 10th January
2009 his younger brother was attacked by thugs and he had to travel to his rural home
to attend to his treatment as a facilitator. He told Court that “in the same month of
January” another brother of his was also attacked and again he had to personally
intervene back at home. He told the Court that during that time he could not engage
in the preparation of this application to be brought before the Court.
11. After his main grounds he raised a few more. On the consultations ground Counsel
submitted that there were some consultations between the offices of the Attorney
General and that of the Clerk to National Assembly over possible settlement of and
who should pay the costs and this led to some delay in the filing of the Reference.
12. On the public interest ground, Counsel submitted that since the award made is to be
paid from the consolidated fund, itself public money, the public in Kenya stands to
lose colossal sums of money due to the inordinately high award and invited the Court
to take into account the greater public interest as opposed to private interest.
He submitted further that the Kenyan public will suffer irreparably if the money is
paid without the Government being able to challenge the taxing officer’s award.
13. On prejudice, Counsel specifically argued that the respondents had not commenced
Execution Proceedings as provided by Rule 74 of the Rules of the Court, order 28
rule 3 of the Civil Procedure Act, Chapter 21 Laws of Kenya and section 21 of the
Government Proceedings Act Chapter 40 of the Laws of Kenya, and therefore, he
argued, it would do them no harm if this extension is granted because it would not be
interrupting any execution process.
14. On resources of the parties issue Counsel specifically referred to the 1st Claimant in
Reference No. 1 of 2006, Prof. Anyang Nyong’o and, matching him with the “single
Claimant” mentioned in the judgment, submitted that he is a Cabinet Minister who
will not suffer any prejudice “as a Cabinet Minister is not a man of mean resources.”
134
15. On the merit of the Reference Counsel submitted that the amount awarded of 1.3m$
was inordinately high, was not founded on any legal basis and did not reflect costs for
one claimant especially on the instruction fees.
Counsel cited authorities like City Council of Nairobi vs Intercity Utility Services Ltd
(Civil application No.35 of 2007), Samuel Ondieki vs Samuel Mageto Civil Application
No. 266 of 200, Wasike vs Khisa and Another Civil Appeal No. NAI 248 of 2003 and
Wasike vs Swala Civil Application No. NAI, 150 of 1983 to support his submissions that
this Court has unfettered discretion to extend time, that he had put enough material
before Court to enable it exercise this discretion judicially and not capriciously, that
there is sufficient public interest in this case to warrant extension of time and enable
review of the award and that the reference was merited.
16. Mr. T.J. Kajwang, for the Respondents, relying on the affidavit of Ms Sijeny and
on oral arguments, opposed the application. He concurred, though, with Counsel
for the Applicant on the matters the Court will consider in determining extension
of time as including length of delay, explanation of the delay, arguability of the
reference, merits of the reference, prejudice to the other party, public importance of
the matter, general interest of justice, application made in good faith and sufficiency
of the reasons advanced. He did not dispute the length of the delay. He invited the
Court to examine whether the applicant had sufficiently, and in good faith, explained
the delay in filing the application.
17. First he contended that Counsel was confusing Christmas day, official holidays,
Court vacation and computation of time. He argued that Christmas day is an official
holiday within the meaning of Article 2 of the Rules, that Court vacation is a vacation
determined by the President and published in the Gazette as provided by Rule 19 and
that under Rule 3 periods shall (b) include official holidays, Sundays and Saturdays
and (c) shall not be suspended during Court vacations. He urged the Court to find
that Counsel for the Applicant had not based his arguments on all or any of the
above rules and therefore had not sufficiently explained his grounds of delay due to
“Christmas vacation.”
18. On the family tragedies issue Counsel argued that Mr. Ombwayo had not put anything
on record to help him prove the truth of what he was saying. He enumerated the
many unanswered questions around this ground such as which is the vacation after
which the tragedies happened, on which dates did the attacks happen, when did
Mr. Ombwayo travel to his rural home, when did he return to office, what was the
seriousness of the attacks, and what was the evidence was on record to support what
he was saying. Counsel contended that these are very legitimate questions without
whose answers the Court was unable to determine whether there was sufficient or
any explanation on this ground. Relying on Wasike V. Khisa & Another Civil Appeal
No. NA1 248 of 2003 Counsel told Court that it was the applicants duty to provide
evidence to support the grounds of his application to enable the Court to believe the
truth of what he was saying.
19. On the ground of consultations between the offices of the Attorney General, the Clerk
to the National Assembly and the Treasury learned Counsel challenged the nature
of the said consultations. He invited the Court to take notice that the Respondents
were not party to these consultations and therefore could not be affected thereby.
135
He also argued that since the Attorney General already knew the options and merely
waited for the Clerk’s instructions he could not see why it took up to April to file
the application after the Clerk had allegedly responded in February 2009. He urged
Court to find that there is no explanation at all on this ground as well.
20. On the ground of public interest around the application Mr. Kajwang contended
that evidence of public interest should be brought before the Court and should not
be an opinion of counsel. He told court that public interest cannot be on an amount
of money awarded to a litigant but on a policy issue. He argued further that the
Ruling on Taxation is a very private matter unless the Applicant can show the court
any law which has shown that public policy in the community court is such that
Partner States should not be made to pay certain amounts of money upon which the
applicants would base to argue that a decision to award such money is against public
policy.
21. On the ground of prejudice Counsel argued that there is a judgment by which the
claimants acquired vested rights and it will be prejudicial if it is disturbed or re
opened. He contended that these rights can only be disturbed by applying the rule of
law and the rule of law in the present case is sufficient reason which, in his opinion,
the Applicant had failed to show.
22. On the ground that the Reference is merited as the award is excessive and not founded
on any legal basis, Counsel argued that the Taxing Officer gave a decision on the
matter well aware of the position taken by the Court that one claimant could have
brought the Reference and that, therefore, the Applicant’s argument lacked basis.
Secondly he questioned the basis of the Applicant’s assertion that the sums awarded
were excessive and wondered what they were excessive against or what the yardstick
of what is not excessive was since excessive was a relative term.
Consideration of the Grounds

23. Rule 4 of the Rules of this Court empowers this Court, for sufficient reason, to extend
the time prescribed by these rules. In Boney M. Katutumba – vs Waheed Karim, Civil
Application No.27 of 2007 Justice Mulenga, JSC, (as he then was) held: “… under rule
5 of the Supreme Court Rules (the equivalent of rule 4 of the rules of this Court),
the Court may, for sufficient reason, extend the time prescribed by the rules. What
constitutes “sufficient reason” is left to the Court’s unfettered discretion. In this
context, the Court will accept either a reason that prevented an applicant from taking
the essential step in time, or other reasons why the intended appeal should be allowed
to proceed though out of time. For example an application that is brought promptly
will be considered more sympathetically than one that is brought after an unexplained
inordinate delay. But even where the application is unduly delayed, the Court may
grant the extension if shutting out the appeal may appear to cause injustice.”
24. I respectfully agree with that holding and will apply it in handling the present
application. I, however, also agree with the respondent that it must be discernible
that the application is made in good faith and the reasons plausible and candid to pass
the test of sufficiency. See Mohamed & Muigai Advocates vs Kang’ethe & Company
Advocates H.C.C.C. No.234 of 1999 (O.S). Counsel for the Applicant stated the two
main grounds of his application and added a few others, as afore shown, which I will
proceed to examine.
136
1st Ground
25. In the first ground he said that inability to file in time was due to Christmas vacation.
He stated, and I quote, “… it was within my knowledge that between the 15th
December and 5th January 2009, the entire staff of the East African Community go
on Christmas vacation… so part of the 14 days expired when Court was on vacation.”
26. Mr. T.J. Kajwang, for the Respondents, attacked this reason for insufficiency. He
contended that the Applicant was confusing Christmas day, official holidays, Court
vacation and computation of time. He invited the Court to find that this particular
ground of delay was not sufficiently explained by the Applicant.
27. Having listened to arguments to Counsel, I concur with learned Counsel T.J. Kajwang.
Christmas day is an official holiday within the provisions of Article 2 of the Rules of
this Court. Court vacation is a vacation of the Court determined by the President
of the Court and published in the Gazette vide Rule 19, and, under Rule 3, periods
in (b) shall include official holidays, Sundays and Saturdays and in (c) shall not be
suspended during Court vacations. No such thing as “Christmas vacation” exists
under the Rules of this Court.
28. In my view the applicant had a duty to sufficiently explain what he meant. A blanket
statement that it was within his knowledge that the entire EAC Staff go on Christmas
vacation between 15th December and 5th January, aware that it means different
things to different institutions, without any reference to the above said rules or to
how he could have acquired, and decided to rely on, this knowledge or, at least, to
which officer of the court could have “misled” him, amounts, in my view, to a fairy
tale.
29. If the Hon. Attorney General, or Mr. Ombwayo in particular had, indeed, desired to
file this reference in time surely they had, at their disposal, all professional and material
resources to find out what the rules provide. Instead they chose to rely on generalized
knowledge. On deeper inquiry the Court finds that the first and only communication
in this respect, availed to Court, to the Clerk of the National Assembly was written
by Mr. Ombwayo and was written on the 6th January 2009, a day late. In its “options
available” the letter suggests that the Registrar’s ruling should be referred to a single
Judge in accordance with Rule 78 (current Rule 114). The Court does not seem to
see any urgency in the words used or in the tone of the letter if indeed the Attorney
General thought that time was of the essence.
30. The Court itself asked Mr. Ombwayo to clarify these vacation issues for the record.
First he said he did not know what the Rules provide. Immediately thereafter he said
he was not aware if the President had declared a vacation. Then he said he believed the
Court went on vacation just like the other staff of the EAC. When the Court pressed
him about this belief he said it was a practice even in the past. In contradiction he said
that he had been able to file documents during the 2007/2008 Christmas vacation.
When it was suggested to him that it was possible, therefore, to receive documents at
that time he said that, then, an officer was called from Kisii but that since this time it
was a vacation he could not come back to file the reference.
I found his answers so incoherent that to believe them would be to assume the very
high risk of piecing them together and guessing which fits where. I preferred not to. I
formed the opinion that this ground was being cooked up.
137
2nd Ground
31. Counsel for the Applicant’s second ground was hardship. He told Court that his
brothers at home were attacked one after another whereupon he intervened thereby
losing valuable time.
32. Mr. T.J. Kajwang for the Respondents challenged the sufficiency of the explanation
for this ground because of the many unanswered questions surrounding it as shown
above.
33. I am of the view that the applicant failed to sufficiently explain this ground. Mr.
Ombwayo was challenged to clarify the “vacation”, referred to in his submissions,
after which his family tragedies happened. He did not. He was challenged to mention
the respective dates on which his brothers were attacked. He managed one, the 10th
January 2009, which he could not prove. He was challenged to indicate when he
travelled to his rural home and when he returned. He did not. He was challenged to
produce medical, police or any evidence of these attacks. He only said that all available
documents had been sent to the Teachers Service Commission as his brothers were
teachers and the Commission needed the documents to process compensation. He
did not tell the Court whether he attempted to obtain these documents and failed or
whether he thought they were not required in evidence. He was asked why he thought
the Court could believe his story without evidence and replied that as an officer of the
Court he could not be lying. He was told that this is a Court of Law and the issue was
one of proof and not one of who was lying and who was not. He answered that he had
no opportunity to obtain proof. When he was asked whether the Attorney General’s
Chambers got incapacitated because he was away he said he had gone up country and
mistakenly did not hand over the file otherwise the office was operational.
34. The Attorney General was served with Ms Sijengy’s replying affidavit, in which the
sufficiency of Mr. Ombwayo’s explanation of his family tragedies was questioned, on
or around 20th May 2009. He filed nothing in evidence. He personally sought and
was granted leave to file a further affidavit. He did file one on 11th June 2009. He did
not explain any of these issues.
35. Upon careful examination of the of arguments on this ground I could not tell, with
certainty, whether the unfortunate tragedies actually happened, whether, if they
happened, Mr. Ombwayo went home to assist or whether nothing at all happened to
Stanley and Wyclif Ombwayo and the ground was a mere gamble. With due respect,
I found Mr. Ombwayo’s honesty, candour and effort in explaining his family tragedy
far less than I would require to admit his story in Court. Clearly this was not the
conduct of counsel who wanted to move the court to appreciate the personal tragedy
that befell him, the resultant honest mistake he committed and the delay occasioned.
(see Mohamed & Muigai Advocates (supra).
36. Even the mistake he claimed to admit of going up country without handing over the
file, needed to be proved, in the first place, before it could be admitted as mistake of
Counsel. I am alive to established case law that mistake of Counsel should not be
visited on his client. (see Zam Nakumansi vs Suleman Lule Civil Application No. 02
of 1999 (SCU). Mr. Ombwayo did not prove to the Court that he went to Mumias
or to Kakamega on any date between 19th December 2008 and 3rd April 2009. The
veracity of his story was challenged way back in May 2009 in Ms Sijeny’s affidavit.
138
He had all the time until 21st August 2009 to prove it. He knew it was his burden
as Mr Ombwayo as well as Counsel for the applicant. There is clear authority that
discretion is exercisable on the basis of evidence and sound legal principle; and that
the duty of placing the necessary evidence before the Court to enable it exercise its
discretion is squarely on the applicant; See Bogetutu Farmers vs Mohamed Hassan
Yonis H.C.C.C No. 154 of 1992.)
In my view the applicant did not discharge his duty.
3rd Ground:
37. The Applicant’s third ground was that there were consultations between the Attorney
General’s Office, that of the Clerk to the National Assembly and the Treasury which
delayed the filing of the application. Counsel for the Respondents challenged this
ground as shown above.
The Court examined the arguments.
38. Counsel for the Applicant was asked to clarity the nature of these consultations, if
they ever took place, and why they should have occasioned a delay. His response was
that;
“… some of the consultations were, in terms of meetings and, of course, there was
also a possibility of settling the matter. Such consultations are the ones that delayed
the filing of the reference. If there is that possibility of settling the matter and also
analyzing the opinion that I had presented to them, we could not file the reference,
until maybe a decision is made by the Office of the Attorney General and the Clerk
to the National Assembly on the way forward. There is no correspondence annexed
but some of the consultations were in terms of meetings…” When he was pressed
further about the nature of consultations he responded that there was also some
confusion between the Attorney General and the Clerk to the National Assembly,
over who should pay. When he was asked whether the Clerk to the National Assembly
responded to the Attorney General’s letter of 6th January 2009, and whether that
response was in writing, he told the Court that the Clerk replied in writing, sometime
in February 2009, that he, in fact, instructed the Attorney General to proceed and file
a reference pursuant to Rule 114 and that, although he had not found that letter to
annex it to his affidavit, it was within his knowledge that it existed and it preferred the
option of filing a reference.
39. Upon consideration of the arguments of Counsel I found the evidence of consultations
placed before the Court by Counsel, very insufficient. Counsel merely stated that there
were consultations and that he was willing to be cross-examined on his statement.
With due respect this was not the burden placed on him. The burden was to place
evidence before the Court and not to assure the Court that the evidence existed
somewhere else. In the unlikely event that the consultations took place, the Court
was not told why they impaired the capacity of the Attorney General’s Office to file
the Reference. Even a possible settlement, to which the Respondents were not party,
would not have impaired the Attorney General from filing the Reference, just in case.
40. The only correspondence on record is of 6th January 2009. This was after the 14 days.
It was late already. The alleged consultations took place, if at all, after that date. In my
view no matter how fast agreement would be reached on the way forward, it seems
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not to have been the intention of both of these offices that this application is filed in
time.
41. The Court was told by Mr. Ombwayo that the Attorney General waited for the Clerk’s
reply before filing the application. But apart from stating, from the bar, that the
Clerk replied, no evidence was placed before Court. In other words it was not proved
whether the Clerk, up to know, ever responded. Whether it is true, as Counsel told
Court, that the Clerk replied and instructed the Attorney General to proceed and
file a reference under Rule 114, no evidence was placed before Court. Whether it
is true that the letter could not be located in the Attorney General’s Chambers, no
evidence was brought. Assuming it is true the Attorney General received the missing
letter, “sometime in February 2009”, as Mr. Ombwayo told Court, still the Court was
not told what happened all the way to 3rd April 2009. Counsel for the respondents
sought an answer as to why they were not part of these consultations or why they
should be affected thereby in the end. Mr. Ombwayo had no answer for this as well.
42. In Paul Njoroge vs The Attorney General and others, HC Misc case no.90 of 2004 Justice
W.S. Deverell, faced with inability due to negotiations, such as the inability due to
consultations in the present case had this to say; “… I consider that it was a risky
strategy for the applicants to delay filing the record of appeal on the strength of verbal
negotiations, which do not appear to have been reduced to writing at any material
stage. It would have been prudent to have complied with the requirements laid down
in the rules while the alleged negotiations were ongoing and to have confirmed their
existence in writing at some stage. As it is I am not in position in which I can make
any meaningful decision as to who is telling the truth as to the existence of the alleged
negotiations. The burden of proving their existence is upon the applicants who now
wish to rely upon them and I am of the view that this burden has not been discharged.”
43. This authority summarizes my opinion on this ground. I am not in position in which
I can ascertain whether, in truth, these consultations took place and, if they took
place, why the Respondents were not involved, and whether the objective was to find
a way forward over this matter or to frustrate it. The burden of proving that they
took place, what the objective was, and with what the result was upon the Applicant
who now wish to rely on them. In my opinion this burden was not discharged. The
Respondents cannot be affected adversely by unevidenced consultations which they
knew nothing about.
Opinion of the Court on explanation for the delay

44. I am aware of, and respectfully agree with, the holdings of Githinji JA in Wasike vs
Khisa & Another (Civil Application NAI 241 of 2003) that “… it would be a fetter
on the wide discretion of the Court to require a minute examination of every single
act of delay and to require every such act to be satisfactorily explained…” and
that “… it is not every delay in taking any appropriate step required that would
disentitle a party to any relief. It is only the unreasonable delay which is culpable
and whether or not delay is unreasonable will depend on the circumstances of the
case…” Let me cast a comparative glance at the Wasike explanation for delay and
the instant one. In Wasike the applicant said he was sick for sometime and annexed
documents, complete with individual dates, of consultation and names of the Doctor
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he consulted. This persuaded the Court that he was actually sick and unable. He
also told Court that he was engaged in a High Court Election Petition at Nyeri and
annexed the Court proceedings showing which petition it was and the various days it
was heard. Understandably the Court was satisfied with the truth of the applicant’s
story. Requiring a minute examination of each act beyond this would be to ask too
much.
45. In the instant case Counsel for the Applicant claimed inability due to Christmas
vacation, due to family tragedy and due to consultations in the concerned institutions
of Government. The Court did not require him to prove every minute detail of these
stories. All that the Court required of him was to place before it the bare minimum
to enable it form an opinion that what he was saying was probably true. He failed on
each.
I find the delay, therefore, inordinate, unreasonable and wanton. And I find, further,
the explanations insufficient, less than candid and, in places, highly improbable.
46. My considered view is that the Attorney General’s Chambers adopted a casual and
“not urgent” approach in the way they handled the Ruling on Taxation and should
blame nobody but themselves for the delay that resulted.
Upon the above findings alone, this application should fail. But in keeping with the
last holding in Boney M. Katutumba V. waheed Karim (Supra), I will consider the
other grounds to assure myself that shutting out the Reference will not appear to
cause injustice.
4th Ground:
47. Counsel for the Applicant’s argued that there is sufficient public interest in this
application to warrant enlargement of time. He told court that the Kenyan public
stands to lose if such a high award is paid out of the Government Consolidated Fund
without Government having an opportunity to have it reviewed. It was challenged.
48. Upon consideration of the arguments I think this is a case of misplacement of
public interest. I think that the Kenyan public, including the respondents, should
be interested in scrutinizing issues leading to the award and not on the quantum
of award itself. Counsel’s argument suggests that if the award is reduced then the
Kenyan public interest is diminished. Would the respondents, also members of
the Kenyan public, support this view? I think not. Counsel could have done well
perhaps to define the public interest he was talking about. He did not. The Kenyan
public would for example be interested, in my view, on issues like why and how they
ended up in this litigation, whether it was justifiable and unavoidable, why, then, was
the Reference on Taxation not filed in time and the like. And it is obvious that the
Court has nothing to do with such issues. The award, whatever the amount, is a mere
consequence and the Court’s hands in deciding awards cannot be tied to or pegged
on an unknown quantity of public interest unless some law says so and defines the
Court’s minimum and maximum limits. I was not shown any. In the Nairobi City
Council case (supra) Court held that the public had a right to scrutinize the processing
and awarding of tenders by the City Council. That was a public interest issue, not the
money that was paid to the winners of tenders, which would be a mere consequence.
I find, therefore, the issue of public interest, in the sense it was argued before me,
quite misplaced.
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5th Ground:
49. On the resources of the parties Counsel singled out the 1st claimant in the Reference
Prof. Peter Anyang Nyong’o to correspond with the “single claimant” who “could
have brought the reference” (see Ref. No.1 of 2006), and told Court that he is a
member of Cabinet who would suffer no prejudice if extension is granted because,
“…a Cabinet Minister is not a man of mean resources.” Nothing in the way of
evidence was placed before me in support of this assertion. It was made from the bar.
In my view this is a personal view Mr. Ombwayo holds. I was not told how and why
he singled out the 1st Claimant from the other respondents and made him the “single
claimant” in Reference No.1 of 2006. Secondly, unless Mr. Ombwayo’s argument was
that to be a Cabinet Minister in the Republic of Kenya is synonymous with being a
person of no mean resources, he did not show me, and I doubt, whether he is so privy
to Honorable Anyang Nyong’o’s resource situation and that he can even make an
informed opinion on how short or long the he can wait without any prejudice. I am
not in a position to form any opinion either way.
50. Counsel further told Court that the respondents would suffer no prejudice if
extension is granted because they have not commenced the process of execution
against the Government as envisaged under Rule 74 of the Rules of this Court, Rule
3 of order 28 of the Civil Procedure Act (Chapter 21 Laws of Kenya) and Section 21
of the Government Proceedings Act (Chapter 40 Laws of Kenya), that as there is still
a lengthy procedure for the Government to pay and, therefore, that the Reference
would be heard and determined quickly without occasioning prejudice from such
delay. First of all my reading of Section 21 of the Government Proceedings Act does
not suggest a lengthy delay in executing against Government. I was not told why it
should be lengthy. Secondly, while it is true that the respondents have not commenced
execution proceedings to date, I would not hold that they would suffer no prejudice
if extension is granted. The time the Court should seek accountability for is between
the 22nd January and 3rd April 2009. The respondents cannot, in my view, be held
accountable for all the time between those dates. The 22nd of January 2009 is the date
of the Respondents’ last formal correspondence to the Hon. Speaker of the National
Assembly, copied to the Hon. Attorney General, offering amicable settlement “devoid
of any acrimony”. They must have waited for some response for some time. Ms Judith
Sijeny’s affidavit, at paragraph 19, avers that there was no response to explain any
handicap or predicament or any action taken. The 3rd of April 2009 is the date this
application was filed in this Court and copied to the Respondents. Commencement
of execution proceedings then would be legally pointless.
51. I disallow this ground on three accounts; first that the respondents did not sit on their
rights and waste valuable time. Second, that since, as Counsel for the Applicant told
Court, execution against the government “is a very lengthy process”, the respondents
should be afforded an opportunity to embark on it sooner rather than later and third,
I associate myself with P N Waki (JA) in Samuel Ondieki V Samwel Mageto (2006)
KLR “… The right to enjoy the fruits of judgment is as hallowed as the right of appeal
and a breach of either for no good reason would be prejudicial”.
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6th Ground:
52. Counsel for the Applicant told court that the application is merited for three reasons.
First that the Taxing Officer did not take into consideration the order of court that
in taxing the bill he had to consider that the one claimant could have brought the
Reference, second, that it was not founded on any legal basis and, third, that the
award of 1.3m$, as instruction fees, was inordinately high and excessive and not
commensurate with the amount of work done and the complexity of the dispute. It
was challenged.
53. I am aware, as I examine this ground, of the very thin line I tread in order avoid
examining the Reference on Taxation itself. Therefore my opinion must be based
on outwardly visible signs of merit and not the deep and invisible signs for which a
microscope might be required.
54. Several authorities (for example Mwangi v. Kenya Airways [2003] KL P.56, Leo Sila
Mutiso v. Rose Hellen Wangari Mwangi Civil Application No. NAI 225 of 1997)concur
that in these applications merit, or chance of success if the application is granted,
is merely stated as something for a “possible” consideration, not that it must be
considered. The Wa’njuguna case (Misc Civil Application 621 of 2000) the applicant
relied on is very instructive in dealing with a Ruling on Taxation itself not application
to extend time to have a ruling on Taxation challenged as in the present case. I would
therefore resist the temptation to rely on it for to do so would be to cross the thin line.
55. On the first reason, a quick glance at the Ruling on Taxation shows that the taxing
officer referred himself to the particular order which Counsel for the applicant says
he did not consider. On the second, Counsel did not show me that the Taxing Officer
relied on a wrong or non-existent law or fact, or that he was plainly wrong, in arriving
at the award of 1.3m$. On the third, Counsel did not show me, for example, that the
taxing officer taxed a non-taxable item or that he included an item that had not been
included in the bill or that he relied on a wrong calculation formula to arrive at the
award.
56. He himself agreed that the matter was complex but his argument was that it was not
complex enough to warrant an award of 1.3m$. He did not show me any fixed rule
as to minimum or maximum levels of awards contrary to which the Taxing Officer
made the instant award. With due respect, I do not think that the Reference can be
merited on such unevidenced opinions of the Applicant.
57. I associate myself with the observation of the Privy Council in Ratman vs Cumara
Samy (1965) I WLR 10 at Page 12, also cited with approval in Ambunda vs Tanzania
Harbours Authority (Civ. App. No. 164 of 2005), TZCA 48 (4 April 2006), that “The
rules of Court must be obeyed, and in order to justify a Court in extending the time
during which some step in procedure requires to be taken, there must be some
material upon which the Court can exercise its discretion. If the law were otherwise, a
party in breach would have an unqualified right to an extension of time which would
defeat the purpose of the rules, which is to provide a time table for the conduct of
litigation”
58. I would only add that if that “party in breach” is a Partner State within the East African
Community, it would not only obey the rules but it would have to be seen, by all, to
spare no effort to obey the rules if the Rule of Law in the Community is to achieve full
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and uniform respect.

In the instant case, I find no material upon which I can exercise my discretion in
favour of the Applicant. He has failed to satisfactorily and candidly explain the delay
and other grounds to warrant extension of time. The application is lacking in merit
and the scales of justice tilt towards dismissing it. I accordingly dismiss the same with
costs to the Respondent.
****
East African Court of Justice - Appellate Division
Appeal No. 1 of 2009
Attorney General of Kenya And Prof. Anyang’ Nyong’o & 10 others
H. R.Nsekela P.; P.K. Tunoi VP; E. R.Kayitesi JA; L. Nzosaba JA; and J M Ogoola JA
August 18, 2010
In consistency between the Court’s Rules and the EAC Treaty – Appeal from the
decision of a Single Judge - Discretion exercisable on the basis of evidence and sound
legal principle - Finality to litigation- whether the Appellate Division could entertain
an appeal from a decision of a single Judge.
Articles: 2, 35A, 42(1) of the EAC Treaty - Rules: 1 (2) 4, 59(2),(3), 77, 89(1) ,of EACJ
Rules of Procedure 2010.
In 2009, the Appellant sought to appeal against the refusal of the First Instant
Division to extend time to file an appeal against a taxed bill and the decision of a
single Judge to refuse the extension. That application was itself filed out of time thus,
the memorandum and record of appeal could not be served on the Respondents.
On 2nd June 2010, the appeal to the Appellate Division for extension of time to serve
the memorandum and record of appeal was heard and granted. This appeal sought
the review of the exercise of discretion by a single Judge of the First Instant Division.
Held:
1. A single Judge of the First Instance Division has authority to entertain certain specified
interlocutory matters under rule 59 such as applications for extension of time.
2. In the event of a conflict or inconsistency between the Rulesand a provision of the
Treaty, the Rule must yield place of priority to the Treaty. In the instant case, Article
35A of the Treaty, overrides
3. Rule 59(3) of the Court’s Rules. Therefore, the Appellate Division of this Court may
entertain an appeal, that is lodged with it directly from a single Judge.
4. The learned trial Judge considered all the salient issues raised by the Appellant and
exercised his discretion judiciously, not whimsically, nor capriciously, and cannot be
faulted in any material particular. The Appeal was therefore disallowed.
Cases cited:
Egerton v Brownlow; Bowman v Secular Society Ltd [1917] AC at 427
Egerton v Brownlow (Earl) (1853) 4 HL Cas at 14 p.196
Janson v Dreifontein Consolidated Mines Ltd [1902] AC at 491, 492HL
Lim Laboratories Ltd v Evans [1984]2 All ER 417, at 435, CA
Mwangi v Kenya Airways Ltd [2003] KLR 486 at p.487
Phoebe Ndunda & Others v. Mwakini Ranch Co. Ltd & Kitui Town Council, Court of
Appeal Kenya, Civil Application No. NAI.448 of 2001
145
Richardson v Mellish (1824) 2Bing 229

WasikeVs Khisa &Another, Civil Application No.248 of 2003 (KCA), [2004], 1KLR 197
Judgment
Hon. Justice James Ogoola, JA, read the Judgment of the Court:
1. This was a slow and convoluted case. It wound its tortuous way through the maze
of the corridors of this Court at less than the proverbial snail’s pace. The original
Reference, lodged in November 2006, sought an interpretation and application of
the East African Community Treaty (“the Treaty”), regarding the validity of the
nomination and election of Kenya’s representatives to the East African Legislative
Assembly (“EALA”). The Court heard the Reference, and concluded that Kenya’s
National Assembly did not undertake an election within the meaning of Article 50 of
the Treaty; and that the Election Rules in issue infringed the provisions of that Article
50. The Court ordered the Government of Kenya, through its Attorney General, to
pay the costs of the Reference. Thereupon, Mutula Kilonzo & Co., Advocates for the
claimant then lodged a bill of costs for the sum of US $ 5,622,528.69. On 19/12/08, the
Registrar of this Court acting as Tax Master, taxed the bill to US$ 2,033,164.99. The
Attorney General was aggrieved by the decision of the Registrar.
2. Under the Rules of Procedure of the EACJ (“Court Rules”), any party aggrieved by
the decision of the Registrar as Tax Master may appeal by way of a reference to a
single Judge of the Court whose decision is final. However, the Attorney General did
not appeal until the prescribed period within which to appeal lapsed.
3. It was against this background that the Attorney General, on 3/04/09, applied to the
First Instance Division of this Court, to extend the time within which to file a taxation
reference. A single Judge of that Division (Busingye, PJ), acting pursuant to Rule 114
of this Court’s Rules of Procedure, dismissed the application. The Attorney General
then sought to appeal to this Appellate Division, against the Ruling of the single Judge.
His Application, No. 4 of 2009 for that Appeal, was filed out of time; whereupon he
filed yet another application for extension of time. On 16/10/2009, the First Instance
Division dismissed the application for extension of time. Undaunted, the Applicant
sought to appeal against the refusal to extend time. However, that Application too
was itself filed out of time. The memorandum and record of appeal could not be
duly served on the Respondents, on account of expiry of time. Accordingly, (in Civil
Application No. 2 of 2010 filed on 19/03/10), the Applicant once again moved the
Court, under Rule 4 of the Court’s Rules, for an extension of time to enable service
out of time, beyond the 7 days prescribed by Rule 89(1) of the Court’s Rules.
4. For their part, the Respondents had in the meantime filed Application No. 1 of 2010
of 5/03/10, praying the Court to strike out the Applicant’s purported appeal. In the
midst of all this confused state of affairs, the Applicant once more applied to the First
Instance Division (before ARACH, DPJ) for yet another kind of redress. Very sensibly
the learned Judge, noting that the same matters were at that time already before the
Appellate Division, declined jurisdiction and dismissed that particular application.
5. Eventually, this appeal to the Appellate Division (for extension of time to serve the
memorandum and record of appeal), was duly heard and granted on 2/06/2010, with
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an order to backdate the date of service to 13/01/2010. With that the first phase of
the long, slow saga of the case ended yielding place to the next phase: namely, the
hearing of the Applicant’s appeal against the Ruling of Busingye, PJ. Inhat appeal,
the Appellant (the AttorneyGeneral of Kenya) sought a review of the exercise of
discretion by Busingye , PJ. In this regard, the Applicant’s Skeleton/
Written Arguments state that:
“The Gravamen of the appellant argument is that the honourable judge failed to
exercise his discretion in accordance with the law. It is trite law that the Court of
Appeal can interfere with the discretion are(sic) decision of a judge where to (sic) the
following matters can be discerned.
1) That the Judge misdirected himself in law.
2) That he misapprehended the facts.
3) That he took in account of (sic) considerations of which he should not have taken
account.
4) That he did not take account of consideration of which he should not (sic) have
taken account.
5) That his decision albeit it (sic) discretionary is plainly wrong.”
6. From the outset, this Court wishes to dispose of one critical concern in this appeal,
and one that both parties seemed to have swept under the rag – namely: Whether
the Appellate Division should be seized of this appeal at all, given the existence of
Rule 59 of this Court’s Rules of Procedure. It is crystal clear that a single Judge of
the First Instance Division has authority to entertain certain specified interlocutory
matters. Among such matters are application(s) for “extension of time prescribed
under the Rules” – pursuant to paragraph (2) of Rule 59. Accordingly, Busingye, PJ
was totally within the scope and ambit of this Court’s Rules when, as a single Judge,
he entertained the Attorney General’s application for extension of time.
7. However, as to whether the Attorney General, being dissatisfied with the decision
of the single Judge, could or could not then appeal to this Division, is quite another
matter – requiring careful analysis of the law. On the face of it, this Court’s Rules
of Procedure appear to bar any such direct appeal from a single Judge of the First
Instance Division to this Appellate Division. In this regard, Rule 59 (3) states quite
categorically that:
“A party dissatisfied with a decision of a single judge may apply orally to the judge
at the time when the decision is given, or by writing to the Registrar within seven (7)
days after a decision of the judge to have the order, direction or decision of a single
judge varied, discharged or reversed by full Court.”
8. Learned Counsel for the Respondents (Mr. T.J.Kajwang), sought to bolster the
meaning of that Rule with yet another – namely, Rule 83, which provides as follows:
“Whenever application may be made either to the First Instance Division or to the
Appellate Division, it shall in the first instance be made to the First Instance Division,
unless specific rules provide otherwise.”
9. It is true that a reading of Rule 59 together with Rule 83, appears to be unequivocal
in suggesting that an appeal from the judgment of a single Judge of the First Instance
Division of this Court should lie, not directly to this Appellate Division, but rather
to a full bench of the First Instance Division. That, on its surface, is an eminently
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attractive and logical interpretation. On the other hand, the Court is persuaded by
a counter argument – namely, that a more apposite position is to read Rule 59, not
with Rule 83, but with Rule 77 – and then to interpose the provisions of Article 35A
of the Treaty, into the resultant equation (of reading together Rules 59 and 77). Rule
77 reads as follows: “An appeal from the judgment or any order of the First Instance
Division shall lie to the Appellate Division on:
(a) points of law;
(b) grounds of lack of jurisdiction; or
(c) procedural irregularity.”
10. As is evident from the above quotation, Rule 77 is the more specific rule governing
“appeals”, than is Rule 83 (which speaks to applications, in general, that may be made
to the two Divisions of the Court). Rule 77 is couched in terms of appeals from “the
judgment or any order of the First Instance Division”. That language encompasses,
directly, “orders” of the Court – such as the order that was handed down by Busingye,
PJ. Similarly, the Rule encompasses not only the judgments or orders of the full bench
of the First Instance Division, but also those of a single Judge (such as Busingye
PJ). This is so because of the express definition, in Article 2 of the Treaty, of the
term “judgment”– namely: “judgment’ shall where appropriate include a ruling, an
opinion, an order;”
11. Secondly, the matter at hand, in this instant appeal, falls squarely within the four
walls of Rule 77 – namely, that the appeal is an appeal against “points of law”, as well
as against “procedural irregularities”. As will be seen at once, the provisions of Rule
77 are but a mirror reflection: paragraph for paragraph, phrase for phrase, word for
word, and comma for comma, of Article 35A of the Treaty.
12. That Article is a “new” Article, introduced at the time and in the course of the Second
Amendment of the Treaty (in August 2007) when the Court was, among other
features, drastically restructured into a First Instance Division and an Appellate
Division. The Article eloquently bespeaks the effect and consequence of that historic
restructuring, and the devolution of jurisdiction between the two Divisions: the one,
the Trial Chamber; the other, the Appellate Chamber – with litigants of the Court
afforded an unfettered right of liberty to appeal the judgments of the First Instance
Division, to the Appellate Division.
13. That Article puts the matter beyond any possible debate whatsoever. It is trite
law, and a fundamental doctrine and tenet of statutory interpretation, that where
subsidiary legislation (such as the Court Rules, in this instant case) conflict with or
are in any way inconsistent with the provisions of a parent legislation (such as the
EAC Treaty, in this case), the provisions of the subsidiary legislation must yield to
those of the parent one – to the extent of the conflict or inconsistency. In the instant
case, there is a clear inconsistency – if not outright conflict – between Rule 59(3) of
this Court’s Rules, and Article 35A of the Treaty. The Court Rules are made pursuant
to Article 42(1) of the Treaty. Accordingly, the Court Rules, which derive their life
and existence from the Treaty, are of a legal hierarchy that is inferior to that of the
Treaty. Indeed Article 42(1) itself specifically provides that: “The Court shall make
rules of the Court which shall subject to the provisions of this Treaty, regulate the
detailed conduct of the business of the Court.”Indeed, Rule 77 was made after the
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Second Treaty Amendment, precisely to comply with the amended Treaty.
14. Accordingly, in the event of a conflict or inconsistency between the Rules, or a
particular Rule, and a provision of the Treaty, the Rule must yield place of priority to
the Treaty. This means that, in the instant case, Article 35A of the Treaty, overrides
Rule 59(3) of the Court’s Rules. Therefore, the Appellate Division of this Court may
entertain an appeal (such as the instant one), that is lodged with it directly from a
single Judge of the First Instance Division – notwithstanding the apparent constraints
of Rule 59(3) of this Court’s Rules. Needless to say, the legal situation here ought to be
regularized at the earliest appropriate opportunity – including re‐writing the Court
Rules, and re‐visiting the Treaty provisions.
15. That is the state of the law. But in any event, in this particular appeal, the facts
and history of the litigation, as set forth at the outset of this judgment, are quite
disturbing. Their chronicle, adds up to a long litany of one application after another
ad infinitum; and a catalogue of one misstep after another ad nauseum – all to the
sad and costly detriment of the litigants. Justice demands that the successful litigants
should enjoy the fruits of their litigation; and that both litigants should rest from
the trauma of un‐ending litigation. There must be an end to litigation. This Court
cannot and must not at this outstretched stage, in subservience to Rule 59(3) of the
Court Rules (which Rule has, in any event, now been impugned), remit the resultant
decision of this appeal back to the full bench of the First Instance Division. To do so
would, in all probability, be tantamount to launching yet another ponderous odyssey
of a succession of applications and appeals – which would, once more, end at the
gates of this Appellate Division. This Court must, in the interests of justice, pre-empt
any such drawn‐out scenario: which would be but a recipe for patent injustice to the
Parties, coupled with judicial irresponsibility, if not judicial tyranny, by the Court in
perpetuating the injustice of this never‐ending litigation.
16. That is the state of the law. But in any event, in this particular appeal, the facts
and history of the litigation, as set forth at the outset of this judgment, are quite
disturbing. Their chronicle, adds up to a long litany of one application after another
ad infinitum; and a catalogue of one misstep after another ad nauseum – all to the
sad and costly detriment of the litigants. Justice demands that the successful litigants
should enjoy the fruits of their litigation; and that both litigants should rest from
the trauma of un‐ending litigation. There must be an end to litigation. This Court
cannot and must not at this outstretched stage, in subservience to Rule 59(3) of the
Court Rules (which Rule has, in any event, now been impugned), remit the resultant
decision of this appeal back to the full bench of the First Instance Division. To do so
would, in all probability, be tantamount to launching yet another ponderous odyssey
of a succession of applications and appeals – which would, once more, end at the
gates of this Appellate Division. This Court must, in the interests of justice, pre-empt
any such drawn‐out scenario: which would be but a recipe for patent injustice to the
Parties, coupled with judicial irresponsibility, if not judicial tyranny, by the Court in
perpetuating the injustice of this never‐ending litigation. In this regard, it behoves
stating that to remit this matter back to the full bench of the First Instance Division of
this Court would, to all intents and purposes, be to subject the matter to an “appeal”
– in as much as (i) the single Judge sitting pursuant to Rule 114 of the Court’s Rules,
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is in truth exercising the powers vested in him/her alone, on behalf of the whole
First Instance Division. Accordingly, in the event that the full bench is called upon
to entertain the judgment of the single Judge, it would do so as an “appellate” forum.
To that extent, the full bench of the First Instance Division (just like this Appellate
Division of the Court) would interfere with the exercise of the discretionary powers
of the single Judge only for very specific reasons – identical to the ones now canvassed
in this Appellate Division. Why then duplicate and elongate the review process? This
position was very ably considered and settled by the Court of Appeal of Kenya in
the case of Mwangi Vs Kenya Airways Ltd [2003] KLR 486 at p.487 to the effect that:
“1. A single appellate judge sitting alone and acting under rule 4 of the Court of
Appeal Rules (Cap 9 sub leg) is exercising the powers vested in him alone on behalf
of the whole Court. A full court can only interfere with the exercise of those entirely
discretionary powers for very specific reasons. 2. The circumstances under which the
full court would be entitled to interfere with the exercise of the discretionary power
by a single judge are similar to those under which an appellate court would be entitled
to interfere with the exercise of a discretion by a trial judge”.
17. We are of the view that it would be patently meaningless to remit this matter to the
First Instance Division to do exactly that which this Appellate Court is now called
upon to do. We must eschew playing a game of roulette with the fate of litigants who
come to this Court for expeditious, effective, efficient, effectual, and cost effective
remedies.
18. We now turn to the substantive issues raised by the Attorney General (and the
Respondents) in this appeal. Learned Counsel, Mr. Ombwayo, for the Attorney
General, raised, in all, a hefty total of twelve grounds of appeal. However, at page
24, of his own “ Skeleton/ Written Arguments”, the Learned Counsel was content
to collapse the twelve grounds into four issues only, which he then proceeded to
argue before us. In effect, Counsel Kajwang for the Respondents also agreed with the
proposition that the four issues effectively embrace all the substantive factual issues
arising from this appeal.
19. Specifically, Mr. Kajwang stated that: “Facts leading to this appeal have been
accurately described by Learned Senior Principal State Counsel appearing on behalf
of the Attorney General of the Republic of Kenya, we see no reason to reproduce
them in our submissions”.
20. Accordingly, the Court hereby adopts those broad issues as the real grounds of this
appeal, namely: that the learned single Judge erred in exercising his discretion, in as
much as he failed to consider, or considered only inadequately or inappropriately,
that the Attorney General’s delay to effect service was caused by:
(i) the fact that at the material time, all the Court’s staff were on Christmas Vacation;
(ii) the Applicant’s Counsel was attending to a family tragedy - well beyond his own
control;
(iii) the internal consultations between the Attorney General, the National Assembly
and other Government Ministries.
21. We will now proceed to consider the veracity of each one of these grounds seriatim.
Nonetheless, we need to emphasize that it is not the role of an appellate bench in a
case of this kind, to review the substantive merits underlying the grounds of appeal.
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Rather, the role of this Court is to review the propriety of the exercise of discretion
by the trial Judge on each of these grounds. The question to ask, in respect of each
ground, is: Whether the trial Judge in reaching the decision(s) he reached, did so on
the basis of a proper, judicious exercise of his discretion? Did he arrive at the decision
after a judicious process rooted in dispassionate and empirical analysis of the facts
and the law; or merely on a flight of fancy, unanchored in any sound basis? If the
Judge applied the empirical process, it matters not that he arrived at the “wrong”
decision, unless such decision is plainly wrong. If, on the other hand, he engaged
only in the fanciful or the whimsical, then it matters little that he arrived at the “right”
conclusion, to the extent that the process and procedure is plainly and patently
misconceived, irregular, unjust, and wrong. At the heart of the Appellate Court’s
review is the question: Did the Judge exercise his discretion properly (i.e. judicially)?
On this point, both Counsel (for the Attorney General and the Respondents) were in
total agreement as to the applicable Principles of law – namely, that an appellate court
may interfere with the exercise of the trial Judge’s discretion only where the Judge:
(i) misdirected himself/herself in law;
(ii) misapprehended the facts;
(iii) took into account matters/issues he/she should not have taken into account;
(iv) did not take into account matters/issues he/she should have taken into Account;
(v) reached a decision which is plainly wrong.
22. In this connection, this Court is in consonance with the principles laid down
by Mwangi’s case (supra). In our view, that case recasts into brighter light the
fundamental principles specifically enunciated by, most probably, the oldest case on
this point in the East African jurisdiction – namely: Mbogo Vs Shah [1968] EA at 93.
The Principles of this line of case law are that before an appellate court (or, as the case
may be, a full bench of the same court) can interfere with the exercise of discretion by
a trial Judge/single Judge, it must be satisfied that in coming to his/her decision, the
Judge in question:
(i) took into account some irrelevant factor(s);
(ii) failed to take into account some relevant factor(s);
(iii) did not apply a correct principle to the issue (such as, for instance, misdirection
on a point of law, or misapprehension of the facts);
(iv) taking into account all the circumstances of the case, the Judge’s decision is
plainly wrong.
23. Taking into account all the clear Principles and considerations embedded in our law,
we will now embark upon a careful, clinical, and forensic examination of the processes
by which the learned Busingye PJ dealt with each one of the four broad issues raised
in complaint by the aggrieved Appellant/Attorney General. In doing so, we would
wish to emphasize that the trial Judge in this particular case, was dealing with Rule
4 of the EACJ Rules, which requires a qualitatively higher standard to extend time
(namely, “sufficient reason”), than is the case with the standard of “any reason”,
which is prescribed under the corresponding Rules in some of the EAC Member
States (notably Kenya). Accordingly, the trial Judge in exercising his discretion to
extend time in this case, had to and did indeed, raise the bar appropriately to meet the
more rigorous standard of the Community Rule.
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Christmas Vacation
24. The Attorney General’s submission on this issue was to the effect that: “the learned
Judge erred in law and, therefore, misapplied the law in holding that the ground of
hardship due to Christmas Vacation was being cooked up, when it was very clear
from the record that the entire staff of the East African Community including the
Court, went on vacation during Christmas Vacation”.
25. The question for this Court to ask is not whether the trial Judge erred in reaching
the conclusions he reached on this issue. Rather, the question is whether and to what
extent, and in which manner the Judge considered the issue that was before him
regarding the “Christmas Vacation”. We find that, indeed, the Judge dealt with this
issue in depth and at quite some length. At page 3 of his Ruling, the Judge listed,
by way of summary, Mr. Ombwayo’s grounds of application as including: “That
the application could not be filed in time due to Christmas Vacation that was being
observed by the staff of the East African Court of Justice and the Registry was not
manned.”
26. Having so flagged the issue, the Judge then proceeded to diagnose and analyse the
issue – starting thus: “canvassing the first of the grounds, learned Counsel submitted
that it was within his knowledge that between the 15th December and 5th January,
the entire staff of the East African Community go on Christmas vacation.”
27. Next, the learned Judge (at page 5 of his Ruling) considered the counter arguments
of opposing Counsel, Mr. Kajwang, to the effect that care should be taken not to
confine Christmas day, official holidays, Court Vacation, and the computation of
time under Rules 2, 3, and 19 of this Court’s Rules of Procedure. Then (at page 7 of
the Ruling), the Judge proceeded to cast his mind to the applicable jurisprudence:
Case law, such as Boney Katatumba Vs Waheed Karim, Civil Application No. 27 of
2007(unreported), Supreme Court of Uganda; and Mohamed & Muigai Advocates Vs
Kang’ethe & Co. Advocates, Kenya HCCS No. 234 of 1999 (OS). The Judge concurred
with the Respondent’s Counsel that, indeed, there was here confusion between
Christmas day as an official holiday (within the provisions of Rule 2 of the Court’s
Rules; Court Vacation (determined by the President of the Court and gazetted under
Rule 19); official holidays, including Saturdays and Sundays; and Court Vacations.
The Judge took the Senior State Counsel to task to show specifically which rules
provide for “Christmas Vacation” (Counsel conceded he knew of none); whether
there was any “Christmas Vacation” declared by the Court’s President; whether it
was fact or only Counsel’s belief that indeed the Court staff were on leave during their
“Christmas Vacation”; and whether, in fact, Counsel had not filed documents during
the 2007/2008 “Christmas Vacation” – (he had).
28. It is evident, then, that the trial Judge not only dealt with the issue of Christmas
Vacation; but, indeed, he did so: carefully, meticulously adequately, firmly, extensively,
and fairly (i.e. took into account both sides of the argument). He quoted the applicable
rules and the case law, and reflected deeply on the facts of the case (including the
fact that Counsel had indeed filed documents during the period in contention). In
all this, the Judge did not decide anything on the spur of the moment, nor did he
treat the issue superficially, conjecturally or capriciously. He did so advisedly and
judicially. There is, thus, no reason for this Appellate Court to fault the trial Judge on
this ground. Accordingly, that ground fails.
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Family Tragedy
29. Learned Senior State Counsel, averred that the delay in filing the documents was
aggravated, in part, by a family tragedy that befell him personally – namely, to attend
to his two brothers in the rural family home; and that the brothers were attacked, one
after the other, by bandits who left them gravely injured and helpless. In this regard,
the Appellant’s complaints were that the Judge failed to consider certain unchallenged
averments; considered instead irrelevant matters (such as that the Attorney General’s
Office, being operational, was not incapacitate due to Mr. Ombwayo’s family
misfortune); and that the Judge misapprehended the fact that re‐allocation of the
file on this case to another Counsel in the Attorney General’s Chambers, would
have required prior preparation of a brief to enable the new Counsel understand the
dispute.
30. Here again, the task of the Appellate Court is not to try the matter on its merits.
Rather, it is to ask: Whether the trial Judge exercised his discretion judicially in
reaching his decision? In his Ruling (at page 10), the learned trial Judge dealt
extensively with this issue. In summary, the Judge challenged Counsel to prove the
fact of the multiple bandit attacks on his brothers. Counsel could not mention the
dates of the attacks (except one). He could not indicate when he travelled to and
returned from his rural home. He could not produce any medical, police or similar
documentary evidence relating to the attacks. The Judge noted Ms Sijeny’s affidavit
which challenged Mr Ombwayo’s own affidavit concerning these attacks. He even
granted Mr Ombwayo the opportunity to depone a further affidavit. To all this, the
Judge recorded the following: “He filed nothing in evidence. He personally sought
and was granted leave to file a further affidavit. He did file one on 11th June 2009. He
did not explain any of these issues”. Then, on p.11, the learned Judge concluded, thus:
“Upon careful examination of this ground, I could not tell with certainty, whether the
unfortunate tragedies actually happened, whether if they happened [Counsel] went
home to assist or whether nothing at all happened.
31. With due respect, I find [Counsel’s] honesty, candour and effort in explaining his
family tragedy far less than I would require to admit his story in court {see Mohamed
& Muigai Advocates (supra). I am alive to established case law that mistakes of
counsel should not be visited on his client (see Zam Nakumansi v Suleman Lule, civil
Application No.02 of 1999 (SCU).
32. The veracity of his story was challenged way back in May 2009 in Ms Sijeny’s affidavit.
He had all the time until 21st August 2008 to prove it. He knew it was his [own
personal] burden as well as Counsel for the applicant. There is clear authority that
discretion is exercisable on the basis of evidence and sound legal principle; and that
the duty of placing the necessary evidence before the court to enable it exercise its
discretion is squarely on the applicant; see Bogetutu Farmers vs Mohamed Hassan
Yonis HCCC No. 154 of 1992.
In my view the applicant did not discharge this duty.”
33. From the above, it is clear that the trial Judge was seized of the issue, explained it, asked
all the questions relevant and necessary to establish the existence of the double tragedy,
granted counsel every opportunity to prove the matter (including by further affidavit
to counter Ms Sijeny’s challenges promptly and effectively). He did not. Instead, he
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took all the months of January, February and March – a total of approximately 90
days in all – to file this appeal. We cannot find anything at all untoward in all this,
with which to fault the trial Judge concerning this particular ground of appeal. On the
contrary, we are alive, rather, to the all ‐ too ‐ revealing dialogue (recorded at page 145
of the Record of Appeal) between the Court and Counsel on this aspect of the matter
– namely: “Justice Busingye: Okay, when Mr. Ombwayo’s family gets problems, does
the Attorney General’s Office get incapacitated? Mr. Ombwayo: I (sic) cannot get
incapacitated but …of course with those personal problems, I did not even have time
to brief the Attorney General on the issue of time limits. But as I said in my affidavit,
those were my personal problems. It could have been an oversight on me not to have
briefed the Attorney General and may be handed over the file for reallocation to the
Attorney General to allocate it to another Counsel … I did not hand over the file for
reallocation to the Attorney General . That is a mistake I admit to have made.”
34. In addition to the above, this Court takes judicial notice of the fact that the Attorney
General’s Chambers is a fully – fledged State Office with many counsel (of whom Mr
Ombwayo is only one; and indeed, a Senior Principal Officer). Any one of his juniors,
let alone colleagues, could have stepped into his shoes to rescue the situation.
35. Learned Counsel argued very ingeniously both before the trial Judge and before this
Court, that his mistakes as counsel (of which this Court finds quite a bundle), should
not be visited on his client. This is all too true. Just like the trial court, we too are of
course alive to and sympathetic with the position canvassed by Counsel. But then
it has to be remembered that it is Counsel himself who initiated this ground; who
injected , so to speak, the personal dimensions of his family into the official affairs
of his client; and who having brought it to the fore, strenuously argued it before this
Court and the single Judge in the court below. In these circumstances, he has himself
to blame. In a sense, his argument is that if he succeeds on this second ground, then
his client stands to gain. But if he fails, then his client should not suffer. The principal
answer to all this, is that he cannot have his cake and eat it at the same time. He must
bear his cross. In this regard, we would recall, with approval, the stand once taken
by Waki, JA when faced with a similar predicament in the case of Phoebe Ndunda
& Others v. Mwakini Ranch Co. Ltd & Kitui Town Council, Civil Application No.
NAI.448 of 2001 (CA Kenya).His Lordship stated that: “The opportunity given to
applicants was squandered and if it is their case that the advocate was to blame, they
are at liberty to seek recompense from the advocate. As it is, the applicants appeal
to sympathy rather than sound factual and legal basis in seeking the orders above.
I would be surrendering my discretion to whim and caprice if I acceded to the
application on that basis. I decline to do so.” In the circumstances of this appeal,
therefore, the second ground fails – irrespective of where the chips fall.
Internal Consultations
36. The Attorney General’s third ground of appeal was that the delay to file in time was
a consequence, in part, of the necessity for the Attorney General to consult with
both the National Assembly, and the Treasury of Kenya on whether or not to pay
the suit costs. Learned Counsel’s complaint on this issue was that: “The Honourable
Judge misapplied the law on discretion in discussing the [sic] the explanation on
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consultation. The magnitude of the amount of money taxed required consultation
between the three Ministries of the Attorney –General, National Assembly, and
the Ministry of EA Cooperation. The Hon Judge misapplied the law and therefore
fettered his discretion by requiring the appellant the [sic] explain every minute delay.
The court should have considered all reasons of the delay….”
37. A cursory reading of the above ground leaves one with some amount of confusion.
First, the first sentence appears to merely make the assertion (without more) that
the trial Judge misapplied the law of discretion. Secondly, the sentence on fettered
discretion does not seem to connect with the first at all. And even if it did, it seems to
be a complaint about the Judge seeking an explanation in too minute a detail. Yet at
the same time, the same Counsel in the final sentence faults the Judge for not having
considered “all reasons of the delay”. Unfortunately, all this leaves one wondering
what exactly the complaint of this ground is? At best, the complaint is unclear. At
worst, it is simply incoherent. Be that as it may, it was plainly evident that the trial
Judge did adequately deal with the issue of “consultation.”
38. Once more, the question is not whether the Judge’s decision on this issue was “right”
or “wrong”. Rather, it is whether the Judge’s decision was arrived at appropriately,
after due consideration (i.e. judicially). Pages 12 and 13 of the Judge’s Ruling, deal
with this issue of internal consultations. Briefly, the Judge queried the existence
and nature of these consultations; whether they were oral or verbal or written; and
whether there was sufficient evidence to bear out these consultations. The Judge
stated that: “The burden was to place evidence before the court and not to assure
the Court that the evidence existed somewhere else. In the unlikely event that the
consultations took place, the Court was not told why they impaired the capacity of the
Attorney General’s Office to file the Reference. Even a possible settlement, to which
the Respondents were not party, would not have impaired the Attorney General from
filing the Reference, just in case.”
39. And then the learned trial Judge added, with approval, a quotation from Deverell, J,
thus: “In Paul Njoroge vs The Attorney General and others, HC Misc case no. 90 of 2004
Justice W.S. Deverell, faced with inability due to negotiations, such as the inability due
to consultations in the present case had this to say; “… I consider that it was a risky
strategy for the applicants to delay filing the record of appeal on the strength of verbal
negotiations, which do not appear to have been reduced to writing at any material
stage. It would have been prudent to have complied with the requirements laid down
in the rules while the alleged negotiations were ongoing and to have confirmed their
existence in writing at some stage. As it is I am not in position in which I can make
any meaningful decision as to who is telling the truth as to the existence of the alleged
negotiations. The burden of proving their existence is upon the applicants who now
wish to rely upon them and I am of the view that this burden has not been discharged”.
And then, in virtually identical summation as Deverell’s, the trial Judge concluded as
follows: “This authority summarizes my opinion on this ground. I am not in position
in which I can ascertain whether, in truth, these consultations took place and, if they
took place, why the Respondents were not involved, and whether the objective was to
find a way forward over this matter or to frustrate it. The burden of proving that they
took place, what the objective was, and with what the result was upon the Applicant
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who now wish to rely on them. In my opinion this burden was not discharged. The
Respondents cannot be affected adversely by unevidenced consultations which they
knew nothing about.”
40. It is quite evident from all the above, that the learned trial Judge brought his mind to
the issue of consultations; discussed and dissected it at length and in depth; asked of
Counsel all the relevant questions; considered the counter‐arguments of the opposing
counsel; brought to light the applicable jurisprudence; and then (and only then),
reached his own conclusions on the matter. Was he wrong on those conclusions? If
wrong, was he “plainly wrong”? The first one of these two questions (to which our
answer is No), is not really for this Appellate Court to ask, let alone to answer, in an
appeal , (such as the instant one) concerning the exercise of a trial Judge’s discretion.
The second one of those two questions, is appropriate and necessary. The answer, in
this case, is plainly No. In the result, the Appellant’s third ground of appeal also fails.
41. This is because the learned trial Judge considered all the salient issues raised by the
Appellant. He did so by, among others, casting his mind to the case of Wasike Vs
Khisa & Another, Civil Application No.248 of 2003 (KCA), [2004], 1KLR 197 – in
which Githinji, JA, stated that: It would be a fetter on the wide discretion of the Court
to require a minute examination of every single act of delay and to require every such
act to be satisfactorily explained.”
42. In light of the above, the trial Judge did cast a comparative assessment between the
explanation for the delay in Wasike’s Case and the comparable explanation for the
delay in the instant case. The Applicant, in Wasike’s case, produced a full dossier of
evidence to support his claim of having been sick. The dossier was full – complete
with dates of consultation, names of doctors, the relevant court proceedings, the
date thereof, etc. In contrast, the Applicant, in the instant case, did not produce any
documentary evidence. To this, the Judge stated, quite rightly in our view, that: “The
court did not require him to prove every minute detail of these stories. All that the
court required of him was to place before it the minimum to enable it form an opinion
that what he was saying was probably true.”
Prejudice – Failure to hear subsidiary grounds

43. In his oral submission before this Court, learned Counsel for the Attorney General
took issue with the fact that the trial Judge, as single Judge, seemed to judge the
application before him only on the above grounds 1,2 and 3; thus failing to consider
all the other grounds before him – and, therefore, rendering himself to be prejudiced
in the rest of the matter. We will make short shrift of this challenge. Counsel’s point,
in belaboring this line of argument, was premised on the trial Judge’s statement (on
page 37 of his Ruling) to the effect that: “upon the above [three] findings alone, this
application should fail.”
44. Now, even if that were all that the trial Judge stated and did on that matter, we would
find no particular fault with it. First, this is common judicial practice for our courts
of law to determine a matter before them on the basis of only some (not all) of the
issues and grounds canvassed by Counsel – if the particular issues are critical and
dispositive of the dispute. In the instant case, the three grounds were sufficiently
determinative of the application before the Judge. Interestingly, the same Counsel said
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as much. Indeed, the fact of three principal issues, coupled with other lesser issues,
was common knowledge among all the participants in the court proceedings before
the single Judge. Counsel Ombwayo himself said so; and even opposing Counsel, Mr
Kajwang, acknowledged as much when, at p.150 of the Record of Appeal, he said:
“My learned friend has put emphasis on the merits and I accept that it is one of the
things that the Court will look at, but I will also be showing you in the authorities
cited by myself and my learned friend, they have been coded as possibly, those issues
which are on a secondary level and not the primary issues which the Court wants to
look at.
45. I have seen the affidavit of my learned friend, Mr Ombwayo. It is about 17
paragraphs. I want to say that a lot of paper has been used because I think that only
three paragraphs are important in my view, namely, Paragraph 14, 15 and 16….. .i.e.
paragraph 14 Christmas vacation…paragraph 15 the tragedy that befell the family
…. and paragraph 16 that there were some consultations. Those are the only three
reasons. We just want to consider these reasons alone and see if they can fit within the
principles of law that the case law has developed.”
46. It is patently evident that the Court had before it three critical grounds on which
the fate of the application depended. But be that as it may, it is not at all true, as
contended by the Appellant, that the learned Judge discussed only the above three
grounds. The record shows plainly that, indeed, after the three primary grounds, the
Judge proceeded to consider and to make findings even on the secondary grounds as
well – all of them. We now deal with those secondary grounds here below.
Public Interest
47. The Appellant pressed the point that the “exhorbitant” award of costs by the Taxing
Officer should be impugned on the grounds of public interest – in as much as payment
by the Attorney General of such a hefty sum of money, would impinge drastically on
the welfare of the Public Treasury, eat into the Public Finances and adversely affect
the tax payers of Kenya. Accordingly, the Appellant argued, the trial Judge should
have been alive to this issue as a matter of “public interest” or “public policy”. The
argument is immensely ingenious and attractive. Indeed for the Attorney General to
pay the suit costs, would involve a significant loss from the Public Purse of Kenya and
would, to that extent, affect the interest of the Public who are the source of the tax
revenues that feed into that public purse. However, we must be extremely careful with
what constitutes “public interest”, and what does not. A blanket view, to the effect
that use of the taxpayers’ money to pay legal costs constitutes public interest, needs
weighty reflection and deep introspection – for if such argument were stretched to
its logical extreme, then the Attorney General would never, ever, be condemned by
the Courts of law into paying lawful damages, costs and similar expenses of litigation.
In this regard, it bears repeating what Lord Griffiths so ably proclaimed – namely:
“There is a world of difference between what is in the public interest and what is of
interest to the public” – (see Lim Laboratories Ltd v Evans [1984] 2 All ER 417, at 435,
CA.)
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48. It is eminently true that paying legal costs (and especially in hefty sums) out of the
Consolidated Fund of the National Treasury is, of course, a matter of great interest to
the public. Nonetheless, that in itself, need not be a matter of public interest or public
policy. Blacks Law Dictionary (Seventh Edition, 1999, p.1245) defines “public policy”
in the following two senses:
1) “Broadly, principles and standards regarded by the Legislature or by the courts as
being of fundamental concern to the state and the whole society.”
2) More narrowly, the principle that a person should not be allowed to do anything
that would tend to injure the public at large.”
49. Generally speaking, courts have held public policy to be: “that principle of the law
which holds that no subject can lawfully do that which has a tendency to be injurious
to the public, or the public good.”‐see Egerton v Brownlow (Earl) (1853) 4 HL Cas at
14 p.196, per Lord Truro.
50. Always at the back of the common law concept of what offends the public interest or
policy, are issues of unlawfulness, morality, and similar reprehensible behaviour. In
Janson v Dreifontein Consolidated Mines Ltd [1902] AC at 491, 492 HL, Lord Halsbury
LC first enumerated the more usual acts, contracts and transactions normally held
to be against public policy (including; contracts for marriage brokerage, restraint
of trade, gaming and waging, and assisting the King’s enemies). His Lordship then
stated that all these: “are undoubtedly unlawful things; and you may say that it is
because they are contrary to public policy they are unlawful; but it is because these
things have either been enacted or assumed to be by the common law unlawful.”
51. In the case before us, the essential element for consideration of the public interest is
missing – namely, there would be absolutely nothing “unlawful”,or “immoral”, or
reprehensible about the Attorney General of Kenya paying litigation costs from the
Public Treasury of the Republic. If anything, such payment would indeed redound to
the rule of law, in general, and to the enforcement of Court judgements, in particular
– both of which are the very essence on which any law‐abiding ship of State is
anchored. We should, as a court be circumspect of what LORD HALSBURY (in the
Janson case above (and others e.g. Egerton v Brownlow; Bowman v Secular Society
Ltd [1917] AC at 427), termed as “inventing a new head of public policy”. This is so
because judges are interpreters of the law, not expounders of public policy; and it is
important that the doctrine should only be invoked in clear cases, in which the harm
to the public is substantially incontestable – see Halsbury’s Laws of England(Fourth
Edition Reissue, 1998 Vol. 9 (1), Para 842. Similarly, the Court should give heed to the
following graphic advice opined by Burrough, J in Richardson v Mellish (1824) 2 Bing
229 at 252: “I, for one, protest … against arguing too strongly upon public policy; it
is a very unruly horse, and when once you get astride it, you never know where it will
carry you. It may lead you from the sound law. It is never argued at all but when other
points fail”.
52. Having regard to all the above, it will suffice to say that in the instant case, the trial
Judge did, indeed, raise and consider the issue of “public interest” as canvassed
by learned Counsel for the Attorney General. The Judge engaged Counsel on this
at some considerable length. In particular, his Lordship discussed, especially, the
irrelevance of the quantum of the costs. He opined that the Kenyan public, including
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the Respondents, would be interested more in scrutinizing issues leading to the award
of the costs, than merely the quantum of those costs. They would be interested in
issues such as why and how they ended up in this litigation, whether it was justifiable
and unavoidable, why the Reference on Taxation was not filed on time, and the
like. Then, he reached his decision (dismissing the argument). The decision reached
was, therefore, a function of a well‐reasoned and fair process. Whether the decision
emanating from that process was “right” or “wrong”, is quite a different matter –
not for this Appellate Court to second‐guess. We are satisfied that the trial Judge
exercised his discretion on this issue judiciously (not whimsically, nor capriciously).
He cannot be faulted in any material particular.
Prejudice to the Respondents/Ministers

53. The Appellant’s contention here was to the effect that if the trial Court had granted
the application to file out of time, there would have been no prejudice occasioned to
the Respondents – who were, in any case, high‐ranking Government Ministers, etc,
receiving regular monthly government salaries. The Court finds grievous fault with
this line of argument, and on very many levels. First, not all the Respondents (eleven
in number) were Ministers receiving Government salaries. On the contrary, at the
onset of this litigation, virtually all eleven were other than Ministers; with many being
in the opposition Political Parties. Second, and even if they were all or substantially
all Government Ministers (as they now are), that would not avail much in the way
of relieving the Respondents’ legal rights or mitigating their loss. While receiving a
regular salary might relieve or, at any rate, ameliorate the Respondents’ “economic
prejudice”(i.e. financial hardships, etc), it would do absolutely nothing to address, let
alone redress, their “judicial prejudice”.
Conclusion
54. Undoubtedly, the Appellant had a right to access ultimate justice by way of appeal.
But then, that right was not open‐ended. It was circumscribed by the Rules of this
Court in terms of the requirement of Rule 4 to file the notice within 7 days. The
Appellant did not comply. The delay dragged on from one month, to two, and
ultimately to almost three months: in all, a delay of some 90 days. Such a delay was, by
any measure, inordinate. It was inimical to the rights of the Respondents, to enjoy the
fruits of the judgment of their long‐standing litigation. It was inimical to the exercise
of the trial Judge’s judicial discretion – which was grounded in equity and which,
like the Appellant’s own application to extend time, was itself anchored in equity. In
short, the Appellant came to equity tardy and untidy – with soiled hands and inept
footwork. Equity eschews indolence. Finally, it was inimical to the principle of finality
to litigation – the principle in respect of which we catalogued, at the outset of this
judgment, all the convoluted twists and turns that have characterized this hapless
litigation right from the start, all the way to the present. This ubiquitous twisting and
turning must stop, at some point. That point is now. To this end, we derive comfort
in Rule 1 (2) of this Court’s Rules of Procedure, which mandates this Court to use its
“inherent power to make such orders as may be necessary for the ends of justice…”
55. In the result, this Appeal is dismissed. The costs of the Appeal and of the related
159
proceedings, whether in this Appellate Division, or in the First Instance Division of

this Court, are awarded to the Respondents.
It is ordered accordingly.
****
East African Court of Justice – First Instance Division
Hon. Sitenda Sebalu And The Secretary General of the East African Community,
The Attorney General of the Republic of Uganda Hon. Sam. K. Nuba & Electoral
Commission of Uganda
Johnston Busingye, PJ, Stella Arach-Amoko, DPJ, John Mkwawa, J, Jean-Bosco Butasi,
J, Benjamin P. Kubo, J
June 30, 2011
Accountable governance -Appellate jurisdiction – Delay in operationalizing the

extended jurisdiction of the EACJ - Partner State non-compliance - Sectoral Council
on Legal and Judicial Affairs- Whether the Treaty conferred appellate jurisdiction on
the Court over the decisions of the Supreme Court of Uganda - Whether the delay in
vesting the EACJ with appellate jurisdiction contravened the Treaty.
Articles 6(d), 7(2), 8(1)(c), 23, 27(1),29, 30, 35A, 67(3) of the EAC Treaty- Rules 1(2)
and 21 of the EACJ Rules of Procedure, 2010.
The Applicant filed Election Petition No. 25 of 2006 in the High Court of Uganda
against Hon. Sam K. Njuba and Electoral Commission of Uganda and lost. The
Applicants appeal to the Court of Appeal was dismissed with costs and thereafter,
his second appeal to the Supreme Court of Uganda was also dismissed with costs
to the respondents in 2009. Being dissatisfied with the decision of the Supreme
Court of Uganda, the Applicant approached the EACJ to register his desire to file
a further appeal to the EACJ as an Appellate Court claiming he still had a right of
appeal to the EACJ under Articles 6, 7(2), 8(1)(c), 23, 27(1) and 30 of the Treaty.
The Applicant sought and interpretation of Articles 5, 6(d), 7(2) and 8(1)(c) of the
Treaty so as to determine whether the delay in vesting the EACJ with appellate
jurisdiction contravened the doctrines and principles of good governance, adherence
to the principles of democracy, the rule of law, social justice and the maintenance of
universally acceptable standards of human rights” enshrined in the Treaty.
The Respondents opposed the Reference claiming inter alia that Applicant’s
insistence on breaches of Article 6 did not disclose any cause of action and that a
right of appeal was presumptuous as the Council had not yet determined the extent
of extended jurisdiction of the EACJ.
Held:
1. The delay of the Council of Ministers to operationalise, had a negative effect on
good governance, democracy, rule of law and human rights in East Africa and this
supports the existence of a cause of action.
2. Article 27(2) provides for appellate jurisdiction in the future via the mechanism of
a protocol, which protocol is yet to be concluded. The appellate jurisdiction under
Hon. S. Sebalu v EAC Secretary General and others
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Article 35A had nothing to do with appeals from national courts thus the Treaty
does not confer appellate jurisdiction on the EACJ over the decision of the Supreme
Court of Uganda.
3. The holding of endless consultative meetings on the draft protocol over a period
of six years without tangible results was counterproductive as it the process did
not result in any outcome notwithstanding the acknowledgement by the Sectoral
Council that jurisdiction of the EACJ ought to be extended.
4. The issue of extended jurisdiction of the EACJ did not come as an afterthought, the
Court held that both the 1st and 2nd Respondents failed to discharge their respective
obligations. Their failure or delay in submitting comments on the draft Protocol to
operationalise the extended jurisdiction of the EACJ to the Council of Ministers was
an infringement of the Treaty.
5. Quick action should be taken by the East African Community in order to conclude
the protocol to operationalise the extended jurisdiction of the East African Court of
Justice under Article 27 of the Treaty.
Cases cited:
Prof. Peter Anyang’ Nyong’o & Others v Attorney General of Kenya and Others, EACJ
Semler v Murphy (1967) 1Ch.183
White & Another vButt (1909) 1KB 50
Judgment
Background
1. This Reference was brought before the East African Court of Justice (EACJ) by way
of Notice of Motion under Articles 6, 7(2), 8(1)(c), 23, 27(1) (sic) and 30 of the Treaty
for the Establishment of the East African Community (“the Treaty”) and Rules 1(2)
and 21 of the EACJ Rules of Procedure (“the Rules”). The Notice of Motion filed
on 14th June, 2010 and amended on 27th October, 2010 prayed for the following
Orders:-
2. That the act of the 1st Respondent to delay to convene the Council of Ministers as
stipulated under Article 27 of the Treaty to create The East African Court (sic) as an
appellate court is an infringement of Articles 7(2), 8(1)(c) and 6 of the Treaty for
Establishment of The East African Community.
3. That the inaction of the 1st Respondent is in itself an infringement of the Fundamental
principles of good governance, including adherence to the principles of democracy,
the rule of law, social justice and the maintenance of universally acceptable
standards of human rights which are enshrined in those Articles of the Treaty of the
Community in particular regard to peaceful settlement of disputes.
4. That the inaction and the loud silence by the 1st and 2nd Respondents is an
infringement of Articles 6, 27, 29 and 30 of the Treaty for the Establishment of the
5. That quick action should be taken by the East African Community in order to
conclude a protocol to operationalise the extended appellate jurisdiction of the
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East African Court of Justice under Article 27 of The Treaty to enable the Applicant
and other interested litigants “preserve” their right of appeal to the East Court of
Justice (sic) under Articles 6, 7(2), 8(1)(c), 23, 27(1) and 30 of the Treaty for the
Establishment of the East African Community and Rules 1(2) and 21 of the East
African Court of Justice Rules of Procedure and subsequently file their appeals. That
cost of the Reference be provided for.
The Notice of Motion is supported by the Affidavit of the Applicant also filed on
14th June, 2010.
Grounds of the Reference

6. The grounds upon which the Notice of Motion is based are essentially as follows:-
The Respondents herein are sued jointly and/or severally for declarations that the
Applicant has a right of appeal to the EACJ under the Articles alluded to in prayer
(d) above.
7. The Applicant filed Election Petition No. 25 of 2006 in the High Court of Uganda
against Hon. Sam K. Njuba and Electoral Commission of Uganda (3rd and 4th
Respondents herein, respectively) and lost.
8. The Applicant then filed Election Petition Appeal No. 1 of 2008 in the Court of
Appeal of Uganda against the High Court decision. The Appeal was dismissed with
costs to the respondents in the petition appeal.
9. Still dissatisfied with the decisions of the first two Ugandan superior courts, the
Applicant filed a second appeal, being Election Petition Appeal No. 6 of 2009 in the
Supreme Court of Uganda (highest court in the land) against the Court of Appeal
decision. The second appeal too was dismissed with costs to the respondents in the
petition appeal.
10. The Applicant being also dissatisfied with the decision of the highest court in Uganda
then came to the EACJ to register his desire to further appeal to the EACJ as an
Appellate Court since, in his view, despite the Ugandan Supreme Court Judgment,
he still has a right of appeal to the EACJ under Articles 6, 7(2), 8(1)(c), 23, 27(1) and
30 of the Treaty for the Establishment of the East African Community and Rules 1(2)
and 21 of the EACJ Rules of Procedure.
11. The Applicant complained that although Article 27(2) of the Treaty provides for
conferment on the EACJ of such other original, appellate, human rights and other
jurisdiction as will be determined by the Council at a suitable subsequent date, none
of those additional limbs of jurisdiction has been conferred on the EACJ by the
Council as yet.
12. The Applicant invited the Court through the current Reference to interpret
Articles 5, 6(d), 7(2) and 8(1)(c) of the Treaty so as to determine the contention
that the delay to vest the EACJ with appellate jurisdiction is a contravention of the
doctrines and principles of good governance, including adherence to the principles
of democracy, “ the rule of law”social justice “and the maintenance of universally
acceptable standards of human rights” which are enshrined in the Treaty which the
East African Community Partner States undertook to abide by.
13. The Applicant contended that the rule of law requires that public affairs are conducted
in accordance with the law; that the decisions of the courts can be appealed against;
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and that “the continuous delay to establish the East African Court of Appeal as
stipulated by Article 27 of the Treaty is a blatant violation of the rule of law and
contrary to the Treaty and East African integration.”
14. The Applicant’s complaint against the 1st Respondent vide ground 21 was that the
1st Respondent being the Chief Executive Officer of the Community is mandated to
convene the Council of Ministers of East African Community to conclude a protocol
to operationalise the extended jurisdiction of the East African Court of Justice in
order to handle appeals from the final Appellate Courts of the Partner States and
that Protocol has been pending action since 4th May 2005 as A Draft Protocol to
Operationalise The Extended Jurisdiction of The East African Court of Justice.
15. The Applicant finally averred in ground 22 that this Court is seized with jurisdiction
to handle this matter by virtue of Articles 6, 7(2), 8(1)(c), 23, 27(1) and 30 of the
Treaty and Rules 1(2) and 21 of the East African Court of Justice Rules of Procedure
as there are serious questions for determination by this Court of “the legality of any
Act, regulation directive, decision or action of a Partner State or institution of the
Community on grounds that such Act, regulation, directive, decision or action is
unlawful or an infringement of the provisions of the Treaty.”
Representation of the Parties

16. The Applicant was represented by learned Counsel, Messrs Chris J. Bakiza and Justine
Semuyaba. The 1st Respondent was represented by learned Counsel, Mr. Wilbert
Kaahwa; the 2nd and 4th Respondents were represented by learned Counsel, Ms.
Christine Kaahwa and Mr. Eric Sabiiti; while the 3rd Respondent was represented by
learned Counsel, Mr. Daniel Wandera Ogalo.
1st Respondent’s Response to the Reference

17. In his response filed on 2nd August, 2010 and amended on 10th November, 2010
the 1st Respondent contended that the Applicant’s reference to breaches of Articles
6, 27, 29 and 30 of the Treaty was misconceived, frivolous and vexatious, essentially
on the grounds:-
i) That pursuant to Articles 4 and 67 of the Treaty, the 1st Respondent is the Principal
Executive Officer of the Community and his responsibilities include-
Facilitating the functioning of the Community, the Council of Ministers (‘the
Council’) and the Community’s Secretariat;
Convening the Council’s meetings in accordance with Article 15 of the Treaty and
the Rules of Procedure of the Council.
ii) That pursuant to Article 14(3) the Council at its first meeting held on 13th January,
2001 established a Sectoral Council on Legal and Judicial Affairs (‘the Sectoral
Council’) which is the Council of Ministers’ technical arm on the implementation of
the Community’s programmes on co-operation in legal and judicial affairs.
iii) That at its meeting held on 24th November, 2004 the Sectoral Council decided that
in view of the growing scope of the East African Community integration process, the
jurisdiction of the EACJ be extended.
iv) That the Secretariat under the 1st Respondent’s guidance prepared a draft protocol
(zero draft).
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v) That in the discharge of his obligations and with reference to the draft protocol, the
1st Respondent convened the following meetings –
Meeting of the Sectoral Council held on 8th July, 2005 at which the zero draft
protocol was adopted and a decision made to subject the draft protocol to a wide
consultative process;
10th Meeting of the Council held on 9th August, 2005 at which progress on the
draft protocol was noted;
Meeting of the Sectoral Council held on 5th – 10th June, 2006 at which progress
on the consultative process was noted;
Meeting of the Sectoral Council held on 4th August, 2006 at which progress on the
consultative process was further noted;
12th Meeting of the Council held on 25th August, 2006 at which progress reports
of the Sectoral Council were noted;
6th Meeting of the Sectoral Council held on 24th January, 2009 at which the
Partner States sought more time for consultations on the draft protocol;
7th Meeting of the Sectoral Council held on 27th April, 2009 at which the
Secretariat’s report on the Partner States’ consultative process was noted;
9th Meeting of the Sectoral Council on Legal and Judicial Affairs [held on 8th
October, 2010] at which recommendations for further consultative were made
(sic).
vi) That the 1st Respondent has discharged and continues to discharge the role expected
of him as the Community’s Principal Executive Officer on the matter of the draft
protocol and in particular to convene the relevant policy-making meetings; that
from the initial zero draft the ‘protocol’ has consistently undergone improvement;
that, therefore, the 1st Respondent cannot be accused of inaction, delayed conclusion
of the draft protocol or infringement of Articles 6, 7(2), 8(1)(c), 27 or any other
provision of the Treaty; and that the 1st Respondent cannot be accused of loud or
any silence on the development and finalisation of the draft protocol.
vii) That the EACJ has no appellate jurisdiction and that the Applicant’s insistence on
breaches of Article 6 does not disclose any cause of action on how the 1st Respondent
infringed the provisions of that Article.
viii) That the Applicant‘s insistence on a right of appeal is presumptuous as the Council
has not yet determined the extent of extended jurisdiction of the EACJ.
ix) That Article 29 on which the Applicant relies does not apply because no Partner State
has failed to fulfil an obligation or infringed a provision of the Treaty to necessitate a
Reference by the 1st Respondent to the EACJ.
x) That Article 30 on which the Applicant relies does not apply because the pleading
does not allege the illegality of any Act, regulation, directive, decision or action of a
Partner State or an institution of the Community that is unlawful or infringes the
Treaty.
xi) That the granting of declaratory orders does not arise and that the Reference be
dismissed with costs.
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2nd and 4th Respondents’ Response to the Reference

18. The response of the 2nd and 4th Respondents filed on 18th November, 2010 to
the Reference was basically along the lines and in support of the 1st Respondent’s
response; it chronicled various consultative workshops convened by the 1st
Respondent between October, 2005 and January, 2009 plus the outcomes of those
Workshops. The 2nd and 4th Respondents’ response was supported by the affidavits
of Sam Rwakoojo and Caroline Bonabana from Uganda’s Electoral Commission and
Attorney General’s Chambers, respectively.
19. The thrust of the 2nd and 4th Respondents’ response was that the workshops recorded
certain concerns which were said to point to a need for further consultations by
Partner States on the draft protocol and that the consultations were on-going. We
address the reported concerns later in this Judgment.
20. The 2nd Respondent averred that he had not infringed Articles 6, 27, 29 and 30 of
the Treaty. He reported that at the 9th Meeting of the Sectoral Council on Legal
and Judicial Affairs (held on 8th October, 2010) the Republic of Uganda, which he
represents, expressed the need for further consultations and requested for a three-
month extension; and that the Sectoral Council extended the time for submission of
comments in writing on the draft protocol to operationalise the extended jurisdiction
of the EACJ to 31st December, 2010.
Like the 1st Respondent, the 2nd and 4th Respondents prayed for dismissal of the
Reference with costs.
3rd Respondent’s Response to the Reference

21. In his response filed on 3rd August, 2010 to the Reference, the 3rd Respondent
essentially contended as follows:-
i) That the acts complained of and the interpretation of the Treaty sought are all
in respect of actions and/or omissions of the 1st Respondent and not of the 3rd
Respondent, thus the Reference does not disclose a cause of action against the 3rd
Respondent and he should be struck off with costs.
ii) That in respect of the 1st and 5th grounds of the Reference, the Applicant has a right
of appeal to the EACJ and that he desires to further appeal to the EACJ. The 3rd
Respondent averred further that no appeal by the Applicant lies against him to the
EACJ under Articles 6, 7(2), 8(1)(c), 23, 27(1) and 30 of the Treaty.
iii) That the Reference does not contain a concise statement of facts and law relied upon,
but a rather lengthy narrative of irrelevancies, reproduction of contents of provisions
of the Treaty and arguments and as such is scandalous, frivolous, an abuse of court
process and should be struck off with costs.
iv) That, in the alternative and without prejudice to the foregoing, the 3rd Respondent
admitted that the Council of Ministers over the past 10 years neglected and/or failed
to set a date for the extended jurisdiction of the EACJ as required by the Treaty and
therefore held back the integration process to the detriment of the people of East
Africa; but that, that notwithstanding, until the Council does so, the EACJ has no
appellate jurisdiction.
v) That the deliberate delay to implement Article 27(2) by the Council of Ministers has
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a negative effect on good governance, democracy, rule of law and human rights in
East Africa as stated by the Applicant, but that the delay and/or refusal to extend
jurisdiction cannot be cured by a decision of the EACJ.
vi) That in view of the foregoing, the Reference be dismissed as against the 3rd
Respondent, with costs.
Applicant’s Reply to the Respondents’ Responses to the Reference

22. In his affidavit in reply filed on 27th September, 2010, the Applicant essentially made
the following rejoinder to the Respondents’ responses to the Reference:-
i) That much as the Sectoral Council and Partner States of the East African Community
have engaged in wide consultations on the development of the draft protocol to
operationalise the extended jurisdiction of the EACJ, the inaction and delayed
conclusion of the draft protocol constitutes an infringement of the provisions of the
Treaty.
ii) That the failure of the 1st and 2nd Respondents to fast-track the process of achieving
the full extent of the extended appellate jurisdiction of the EACJ, much as it may be
a shared responsibility, has left the Applicant and the rest of the Ugandan people
aggrieved for failure to enjoy the full rights of good governance, democracy, rule of
law and human rights in Uganda and that the failure constitutes a cause of action
against the 1st and 2nd Respondents.
iii) That the cause of action equally affects the 3rd and 4th Respondents, being nominal
Respondents.
iv) That whereas, according to records supplied by the 1st Respondent, issues pertaining
to the establishment of the EACJ were discussed in the Meeting of Attorneys General
of the Member States on 31st May, 2000, no serious action or follow-up on the
matter was made by the 1st Respondent until 24th November, 2004 when the 1st
Respondent convened a Sectoral Council Meeting to consider the zero draft protocol
to operationalise the extended jurisdiction of the EACJ.
v) That during that period of inaction, the 1st Respondent convened other Sectoral
Council Meetings to consider other matters of integration but not the matter of the
extended jurisdiction of the EACJ.
vi) That according to the Rules of Procedure for the Council of Ministers, especially
Rule 7(5) adopted on 13th January, 2001, the 1st Respondent may, under special
circumstances, at any time, add items to the provisional agenda of the Meeting of the
Council provided that Partner States shall be notified forthwith.
vii) That whereas the issue of the extended jurisdiction of the EACJ has at all material
times been a critical matter for achieving meaningful integration of the East African
Community, the 1st Respondent ignored and/or neglected his statutory obligation
without any reasonable explanation.
viii) That the 1st Respondent is clearly responsible for the delays in operationalisation
of the extended jurisdiction of the EACJ.
ix) That the 2nd Respondent, who represents the Republic of Uganda, is also responsible
for grave inaction in this area.
x) That according to the records of the Consultative Session of Deputy Attorneys
General of the Member States held on 19th March, 2010, it was clear that Uganda
167
had never submitted its written comments on the operationalisation of the protocol
and Uganda was urged to submit the same by 30th September, 2010.
xi) That no reasonable explanation has been given by the 2nd Respondent for that
inaction for such a long time.
23. That given the historical position of Uganda in the affairs of the East African
Community integration process, it cannot be said that the 2nd Respondent has acted
expeditiously as was required of Member States; and thus the delay has been an
impediment to the expedition of the operationalisation of the protocol.
24. That the Treaty for the Establishment of the East African Community authorises the
Council of Ministers to set a definite date for implementation of the draft protocol
and, to that extent, the 2nd Respondent shares in the breach of that responsibility to
the prejudice of the people of Uganda.
25. That the 3rd Respondent, rightly, admits that there is a delay to implement Article
27(2) by the Council of Ministers and that the delay has a negative effect on good
governance, democracy, rule of law and human rights in East Africa as stated by the
Applicant.
Issues for Determination

26. A Scheduling Conference was held on 26th October, 2010 where the issues for
determination by the Court were framed as follows:-
i. Whether or not the Reference discloses a cause of action.
ii. Whether Article 27 of the Treaty confers appellate jurisdiction on the East African
Court of Justice (EACJ) over the decision of the Supreme Court of Uganda in Election
Petition Appeal No. 6 of 2009, Hon. Sitenda Sebalu –vs- Hon. Sam K. Njuba and
Electoral Commission of Uganda.
iii. Whether the 1st Respondent and the 2nd Respondent have discharged their
respective obligations regarding the conclusion of a protocol to operationalise
iv. Whether the delay to extend appellate jurisdiction of the EACJ contravenes the
fundamental principles of good governance, democracy, rule of law, social justice
and human rights stipulated in the Treaty.
v. Whether the 3rd and 4th Respondents are nominal respondents.
vi. Whether or not the parties are entitled to remedies.
Consideration of Rival Pleadings and Submissions

27. The parties filed written submissions which they adopted at the hearing of the
Reference on 30th March, 2011. The submissions are, not unnaturally, in support of
the parties’ respective pleadings.
28. We have given due consideration to the rival pleadings and submissions of the
parties and to the authorities cited in support thereof. We proceed to consider below
the issues in the order in which they were framed.
Issue No. 1: Whether or not the Reference discloses a cause of action
29. As already noted, the Reference under consideration was brought under Articles 6,
7(2), 8(1) (c), 23, 27(1) and 30 of the Treaty and Rules 1(2) and 21 of the EACJ Rules
of Procedure. The Reference seeks the prayers recorded and on the grounds stated
168
hereinabove.
30. In Reference No. 1 of 2006, Prof. Peter Anyang’ Nyong’o & Others –vs- Attorney
General of Kenya and Others, the EACJ had occasion to consider what constitutes a
cause of action under common law and also what constitutes a cause of action under
statute or other legislation.
31. As for a common law cause of action, the EACJ cited with approval the
conceptualisation of such cause of action in Auto Garage –vs- Motokov (No. 3)
[1971] E.A. 514 where Spry, Vice-President of the then Court of Appeal for Eastern
Africa had, inter alia, this to say:
“... if a plaint shows that the plaintiff enjoyed a right, that the right has been violated
and that the defendant is liable, then, in my opinion, a cause of action has been
disclosed .... If, on the other hand, any of those essentials is missing, no cause of
action has been shown ....”
32. The EACJ, however, proceeded in the Anyang’ Nyong’o case (supra) to observe that a
cause of action created by statute or other legislation does not necessarily fall within
the same parameters. The Court noted that the action in the Anyang’ Nyong’o case
was not seeking a remedy for violation of the claimant’s common law rights but an
action brought for enforcement of provisions of the Treaty through a procedure
prescribed by the Treaty. The Court observed that the Treaty provides for a number
of actions that may be brought to the EACJ for adjudication and that Articles 28, 29
and 30 virtually create special causes of action.
33. Among the articles relied on in the said Anyang’ Nyong’o case was Article 30, which,
inter alia, provides:
“30(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 grounds that such Act, regulation, directive, decision or
action is unlawful or is an infringement of the provisions of this Treaty.”
34. We note that the matters complained of by the Applicant herein include actions or
omissions of a Partner State, namely, the Republic of Uganda, represented in this
Reference by the 2nd Respondent. Of the three Articles cited in the Anyang’ Nyong’o
case (supra), including Article 30(1), the EACJ had this to say:
“It is important to note that none of the provisions in the three Articles requires
directly or by implication the claimant to show a right or interest that was infringed
and/or damage that was suffered as a consequence of the matter complained of in the
reference. We are not persuaded that there is any legal basis on which this Court can
import or imply such requirement into Article 30.”
Article 27 to which Article 30 is subject, inter alia, confers upon the EACJ initial
jurisdiction over the interpretation and application of the Treaty; while
Article 23, also cited by the Applicant in the present Reference, makes the EACJ a
judicial body to ensure the adherence to law in the interpretation and application of
and compliance with the Treaty.
We note from the current Reference, essentially:-
i) That the Applicant lays blame on the 1st Respondent, on behalf of the Community,
for delaying to convene the Council of Ministers to operationalise the extended
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jurisdiction of the EACJ;

ii) That the Applicant also lays blame on the 2nd Respondent, on behalf of the Republic
of Uganda, a Partner State, for contributing to the delay in operationalisation of the
extended jurisdiction of the EACJ by delaying to submit to comments on the draft
protocol.
iii) That the Applicant contends that “the inaction and the loud silence” by the 1st and
2nd Respondents is an infringement of the Treaty; and
iv) That the Applicant urges this Court to so interpret the Treaty and make appropriate
orders.
35. On the other hand, the 1st Respondent contends that the present Reference does
not disclose a cause of action under Article 30 of the Treaty; that the 2nd and 4th
Respondents contend that the Applicant does not have a cause of action; while the
3rd Respondent says it was difficult to discern what cause of action the Applicant has
against him since he has no role in the process of developing the protocol to extend
the jurisdiction of the EACJ.
36. We observe that in the instant Reference, like in the Anyang’ Nyong’o case (supra),
the Applicant is not seeking a remedy for violation of his common law rights but has
brought an action for interpretation and enforcement of provisions of the Treaty
through the requisite procedure prescribed by the Treaty. In the premise, we have
no hesitation in reiterating what this Court said in Anyang’ Nyong’o (supra) about
the import of Article 30(1) of the Treaty, namely, that a claimant is not required
to show a right or interest that was infringed and/or damage that was suffered as a
consequence of the matter complained of in the Reference in question. It is enough
if it is alleged that the matter complained of infringes a provision of the Treaty
in a relevant manner. In the present case, it is instructive that in addition to the
Applicant’s complaint of infringement of the Treaty by the main players, namely, the
1st and 2nd Respondents, there is averment in the pleadings of the 3rd Respondent,
an Advocate of the High Court of Uganda who, according to his Counsel, has about
40 years experience at the Bar that the delay of the Council of Ministers has a negative
effect on good governance, democracy, rule of law and human rights in East Africa.
This averment supports the existence of a cause of action.
Accordingly, we answer Issue no. 1 in the affirmative.
Issue No. 2: Whether Article 27 of the Treaty confers appellate jurisdiction on the
EACJ over the decision of the Supreme Court of Uganda in Election Petition Appeal
No. 6 of 2009, Hon. Sitenda Sebalu –vs- Hon. Sam K. Njuba and Electoral Commission
of Uganda
37. Article 27 is framed in the following terms:
“27(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 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, Partner States shall conclude a protocol to operationalise the extended
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jurisdiction.”
38. The term ‘jurisdiction’ is defined in Words and Phrases Legally Defined (2nd Edition,
Volume 3), inter alia, to mean:
“... 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 the statute, charter or commission under which the
court is constituted, and may be extended or restricted by the like means ....”
We adopt this definition of ‘jurisdiction’.
39. The Applicant seems to have adopted an ambivalent position as to whether there is
a right of appeal from a decision of the highest courts of Partner States to this Court.
In his prayer (d) he urges that quick action should be taken by the Community in
order to conclude a protocol to operationalise the extended appellate jurisdiction
of the EACJ, which implies acknowledgement by him that the subject appellate
jurisdiction does not as yet reside in the EACJ. However, the very first of the
grounds on which his Reference is based seeks from this Court a declaration that
he has a right of appeal to this Court under Articles 6, 7(2), 8(1)(c), 23, 27(1) and
30 of the Treaty. Among the latter Articles, only Article 23 has anything to do with
appellate jurisdiction; but such appellate jurisdiction is internal within the EACJ
itself, namely, from the First Instance Division to the Appellate Division, not any
other type of appellate jurisdiction as Article 27(2) envisages.
A plain reading of Article 27(2) clearly reveals, inter alia, that the provision for
appellate jurisdiction relates to the future via the mechanism of a protocol, which is
yet to be concluded.
40. In the circumstances, it is this Court’s finding that Article 27 of the Treaty does not
confer appellate jurisdiction on the EACJ over the decision of the Supreme Court of
Uganda in Election Petition Appeal No. 6 of 2009, Hon. Sitenda Sebalu –vs- Hon. Sam
K. Njuba and Electoral Commission of Uganda.
Accordingly, we answer Issue No. 2 in the negative.
Issue No. 3: Whether the 1st and 2nd Respondents have discharged their respective
obligations regarding the conclusion of a protocol to operationalise the extended
jurisdiction of the EACJ
41. Article 67(3) of the Treaty designates the 1st Respondent as the principal executive
officer of the Community. By virtue of Article 4(3), he/she is the person who
represents the Community. Article 29 mandatorily requires the 1st Respondent:
if he/she considers that a Partner State has failed to fulfil an obligation under the
Treaty or if he/she considers that a Partner State has infringed a provision of the
Treaty, to submit his/her findings to the Partner State concerned for the Partner
State to submit its observations on the findings. If the Partner State does not submit
its observations within four months, or if it submits unsatisfactory observations, the
1st Respondent must refer the matter to the Council which shall decide whether to
resolve the matter itself or to refer the matter to the EACJ.
42. The position of the 1st Respondent with regard to Issue No. 3 is that Article 29 of
the Treaty on which the Applicant relies does not apply because no Partner State has
failed to fulfil an obligation of the Treaty or infringed a provision of the Treaty to
necessitate Reference by the Secretary General to this Honourable Court.
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43. The 1st Respondent added that the Applicant’s insistence on a right of appeal is
presumptuous as the Council has not yet determined the extent of the extended
jurisdiction of the EACJ.
The 1st Respondent also contended that because:
a) under his guidance a draft protocol was prepared;
b) the draft protocol was adopted by the Sectoral Council Meeting held on 8th July,
2005 and a decision made to subject the draft to a wide consultative process;
c) he caused various workshops to be held to consider the draft;
d) he convened the relevant policy-making meetings on the matter and
e) discussions on the draft protocol are still on-going among some stakeholders,
he cannot be accused of inaction, delayed conclusion of the draft protocol or
infringement of Articles 6, 7(2), 8(1) (c), 27 or any other provision of the Treaty
44. The 2nd Respondent’s response to the accusation that he has not discharged his
obligations regarding the conclusion of a protocol to operationalise the extended
jurisdiction of the EACJ is basically as follows:-
He denied inaction and loud silence on his part and associated himself with the
submissions of the 1st Respondent.
45. He contended that the Republic of Uganda and other Partner States have in
pursuance of Article 27 made a draft protocol on extended jurisdiction of the EACJ
and several steps have been taken by them to have the protocol concluded as can be
seen from Minutes of the Sectoral Council.
46. He argued that appellate jurisdiction of the EACJ is provided for in Article 35A; that
what is before the EACJ is a draft protocol which to-date has not been concluded and
is work in progress; that the result of that work in progress may or may not confer
extended jurisdiction on the EACJ; and that one cannot derive any rights under an
intended contract.
47. He submitted that it is fallacious for the Applicant to sue for breach of a right not
yet conferred; and submitted that Article 30(3) does not confer appellate jurisdiction
on the EACJ as in his view that jurisdiction has been reserved by the Constitution
of Uganda to the Supreme Court of Uganda, being the last appellate court in that
country.
48. He pointed out that Uganda is not the only Partner State that has not yet made
written comments or given a position on the draft protocol for extended jurisdiction
of the EACJ; and that even if the EACJ were to make declaratory orders, that would
not cure the ‘inaction’ of the other defaulting Partner State.
49. He proceeded to submit that he has made progress towards enactment of the
protocol and that even though no conclusions have been achieved since the work is
still in progress, he has diligently discharged his obligations.
50. His contention was that there has been no delay to extend appellate jurisdiction of
the EACJ; that Article 27(2) gives no timeframe for extension of EACJ’s jurisdiction;
and that if there has been any delay, it does not contravene the principles of good
governance.
51. The essence of the Applicant’s submissions on the above contention by the 1st
Respondent is as follows:-
That despite acknowledgement by Counsel for the 1st Respondent that the Sectoral
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Council at the meeting held on 24th November, 2004 decided that in view of the
growing scope of the Community integration process, the jurisdiction of the EACJ
be extended, six years have elapsed without the said jurisdiction being extended.
52. That although the 9th Meeting of the Sectoral Council (held on 8th October, 2010)
had given the Partner States which had by then not completed their consultations
(the Republic of Uganda and the United Republic of Tanzania) up to 31st December,
2010 to complete consultations and submit written comments on the draft protocol,
the said States had not done so; yet the 1st Respondent had not taken any action
despite the filing by the Applicant of this Reference in June, 2010.
53. That vide Article 8(1)(c) the Partner States undertook to abstain from any measures
likely to jeopardize the achievement of the objectives of the Community stipulated
in Article 6, or the implementation of the provisions of the Treaty; that the fact that
the EACJ’s jurisdiction has not yet been extended is an infringement of Article 6 and
contrary to the principles of the Community set out therein and a contravention
of the doctrines and principles of good governance, etc. and in particular regard to
peaceful settlement of disputes.
54. That by 10th November, 2010 when Counsel for the 1st Respondent filed response to
the Reference, no mention was made by him of the discharge of the responsibilities
of the defaulting 2nd Respondent and the other defaulting Partner State (the United
Republic of Tanzania). Similarly, no comments were forthcoming from the 2nd
Respondent on the matter.
55. That the acts of delay are continuous and that the 1st Respondent was under a duty
to take action against the defaulting 2nd Respondent, plus the other defaulting
Partner State, in line with Article 29 but the 1st Respondent has not shown that he
discharged that responsibility.
56. That consultative meetings are not ending as they have taken over a decade without
concrete results and the EACJ should intervene as it is an integral part of the
Community’s integration process.
57. That the EACJ is an international court, which heightens the expectations of East
Africans on its performance. That the delay to extend the appellate jurisdiction in
the circumstances of the present case has contravened the fundamental principles of
good governance, freedoms and rights, thereby infringing the Treaty.
58. The Court observes from the submissions and evidence on record that:-
a) At its meeting held on 24th November, 2004, the Sectoral Council decided that in
view of the growing scope of the East African Community integration process, the
jurisdiction of the EACJ be extended.
b) The EAC Secretariat, under the guidance of the 1st Respondent prepared a draft
protocol (zero draft); that at the Sectoral Council Meeting of 8th July, 2005 the draft
protocol to operationalise the extended jurisdiction of the EACJ was adopted; and
that the 1st Respondent has since organized, or caused to be organized, various
consultative meetings to consider the draft.
c) The 1st and 2nd Respondents contended that the Applicant’s insistence on a right
of appeal is presumptuous as the Council has yet to determine the extent of the
d) Vide ground 6(d) of the 1st Respondent’s Response to the Amended Reference, he
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averred that Article 29 of the Treaty on which the Applicant relies does not apply
because no Partner State has failed to fulfil an obligation of the Treaty or infringed
a provision of the Treaty to necessitate Reference by the Secretary General to this
Honourable Court.
e) e)Annex XII to the 1st Respondent’s Response to the Reference, being a Report
of a Consultative Session of Deputy Attorneys General, Solicitors General and
Permanent Secretaries of the Partner States held on 19th March 2010 records,
inter alia, that the session was informed that the Republic of Uganda, represented
by the 2nd Respondent herein, was one among the three Partner States (including
the United Republic of Tanzania and the Republic of Burundi) which had not yet
submitted their comments on the draft protocol; that the session considered the
urgency to conclude the preparation of the protocol but noted the need to have in
place comments by all Partner States which would enable the Secretariat to prepare
and circulate a matrix of comments to assist in preparation of a revised protocol; and
that the 2nd Respondent and the other defaulting Partner States were given up to
30th September, 2010 to submit written comments on the draft protocol.
f) A Report of the Sectoral Council Meeting held on 8th October, 2010 noted that
the 2nd Respondent and the United Republic of Tanzania had still not submitted
comments on the draft protocol; that the compliant Partner States expressed the
view that since the consultations had been going on from April, 2009, a three-month
extension would be sufficient for any further consultations; and that the Sectoral
Council: urged the 2nd Respondent and the other defaulting Partner State to submit
the requisite written comments by 31st December, 2010; directed the 1st Respondent
to prepare a matrix of the comments and revise the draft protocol for circulation to
all Partner States; directed the Secretariat to convene an Extra-ordinary Meeting of
the Sectoral Council to consider the revised draft protocol after receiving comments
from the 2nd Respondent and the other defaulting Partner State.
g) As at the hearing of this Reference on 30th March 2011, neither the 1st Respondent
nor the 2nd Respondent gave any update that either the 2nd Respondent or the
other defaulting Partner State had met the 31st December, 2010 deadline. The 1st
Respondent had also not furnished any evidence of the matrix of comments by all
Partner States on the draft protocol as directed.
h) Article 8(1) (c) obligates Partner States to abstain from measures likely to jeopardise
the achievement of the objectives or the implementation of the provisions of the
Treaty.
The Court finds that:-

59. It has taken over six years since the consultative process on the draft protocol began
after adoption of the draft but the outcome of that process is yet to be made manifest
notwithstanding acknowledgement by the Sectoral Council way back in 2004 that in
view of the growing scope of the Community’s integration process, the jurisdiction
of the EACJ ought to be extended.
60. The delay by the 2nd Respondent to submit written comments on the draft protocol
to operationalise extended jurisdiction of the EACJ constitutes measures likely to
jeopardise the achievement of the objectives of the Community stipulated in Article
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5 or the implementation of the Treaty within the meaning of Article 8(1)(c); and that
the said delay is an act of non-compliance by the 2nd Respondent with obligations
regarding the conclusion of the protocol in question. This state of affairs frustrates
the Applicant’s legitimate expectation of expedition in the matter and constitutes an
61. Submitting that the appellate jurisdiction of the EACJ is already provided for under
Article 35A is erroneous since that Article, read with Article 23, relates to internal
appeals within the EACJ from the First Instance Division to the Appellate Division
but not from national courts to the EACJ.
62. By contending that there has been no or undue delay in concluding the protocol
since Article 27(2) gives no timeframe for extension of EACJ’s jurisdiction, the 2nd
Respondent has laid his country open to accusations by the Applicant that it intends
to indefinitely hold back the process of granting any appellate jurisdiction to the
EACJ over decisions of national courts.
63. The 2nd Respondent’s argument that what is before the EACJ is a draft protocol
which may or may not confer extended jurisdiction on the EACJ further betrays
a possible hidden agenda by his country to indefinitely hold back the process of
extending any appellate jurisdiction of the EACJ as Article 27(2) envisages.
64. The 2nd Respondent’s argument that the Republic of Uganda is not the only Partner
State which has not yet made written comments or given a position on the draft
protocol for the extended jurisdiction of the EACJ, and that even if the EACJ were
to make the declaratory orders sought it would not cure the inaction of the other
defaulting Partner State, does not hold water since the 2nd Respondent cannot plead
the inaction of a non-party to the Reference against his own country’s inaction.
65. The 2nd Respondent’s submission that the Republic of Uganda has diligently
discharged its obligations towards enactment of the subject protocol merely because
it has held consultative meetings is untenable since in the absence of any written
comments by that country on the draft protocol, there is nothing to enable anyone
to gauge the outcome of those “consultations” to the subject at hand.
66. There is no plausible explanation for the 1st Respondent’s failure to ensure that the
2nd Respondent met the 31st December, 2010 deadline or to report the issue to the
Council of Ministers as mandated by Article 29 of the Treaty and by Rule 7(5) of the
Rules of Procedure of the Council of Ministers.
On the contrary, the 1st Respondent averred that no Partner State has failed to fulfil
an obligation of the Treaty or infringed a provision of the Treaty. This is a clear
failure by the 1st Respondent to discharge his obligation.
67. There was failure by the 2nd Respondent to meet the 31st December, 2010 deadline
for submitting written comments on the draft protocol to operationalise the extended
The Republic of Uganda which the 2nd Respondent represents is a Partner State
against which action may be taken under Article 30 and that it has rightly been sued
before this Court.
68. No reasonable explanation was offered by the 2nd Respondent for the aforesaid
failure or inaction and that in so failing, the 2nd Respondent must be deemed,
on behalf of the Republic of Uganda, not to have fully discharged his obligation
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regarding the conclusion of the protocol to operationalise the extended jurisdiction

of the EACJ.
By failing to take action against the 2nd Respondent under Article 29, the 1st
Respondent, too, has not fully discharged his obligations regarding the conclusion
of the protocol.
69. Whereas the records presented before this Court by the 1st Respondent show that
there have been consultative meetings from 2005 – 2010 on the draft protocol
and whereas the meetings were a necessary part of the process, it is clear that all
those meetings have not culminated in achieving the objective for which they were
convened, namely, to conclude a Protocol to Operationalise Extended Jurisdiction
of the East African Court of Justice.
70. There is no evidence that the 1st Respondent invoked any of the powers vested in
him by the Treaty to cause the issue of EACJ’s extended jurisdiction to be brought
to a conclusion.
It is the view of the Court that the mere holding of endless consultative meetings
without tangible results is counterproductive.
71. Accordingly, we find that the 1st and 2nd Respondents have not fully discharged
their respective obligations regarding the conclusion of a protocol to operationalise
extended jurisdiction of the EACJ and we answer Issue No. 3 broadly in the negative.
Issue No. 4 Whether the delay to extend appellate jurisdiction of the EACJ contravenes
the fundamental principles of good governance, democracy, rule of law, social justice
and human rights stipulated in the Treaty
72. The Applicant’s case is basically that there has been unjustified delay in extending
the jurisdiction of the EACJ, inter alia, to include appeals from the decisions of the
highest courts in the Community’s Partner States. Arising from his dissatisfaction
with that delay, and, in particular, his specific dissatisfaction with the decision
of the Supreme Court of Uganda in Election Petition Appeal No. 6 of 2009, Hon.
Sitenda Sebalu –vs- Hon. Sam K. Njuba and Electoral Commission of Uganda, the
Applicant sought to invite this Court to determine his further contention that once
there is further delay to vest the EACJ with appellate jurisdication, then there is
contravention of the doctrines and principles of good governance including the
various ingredients specified under that expression in the Treaty.
73. The bottom line of the pleadings and submissions of the Respondents is that the
question of delay in concluding a protocol is not contested. Even the manner in
which Issue No. 4 was framed by the parties demonstrates that delay is admitted.
What is contested is whether the delay contravenes the Treaty.
74. The expressions “good governance” and “principles of good governance” are
recurrent themes in this Reference. They are not legal terms. Although the said
expressions also recur in the Treaty, they are not defined there. They seem to be used
interchangeably in the Treaty. The only hint one gets from the Treaty, in particular
Article 6 (d), as to what the usage of the expression “principles of good governance”
in the Treaty entails is that the said principles include adherence to the principles
of democracy, rule of law, social justice and maintenance of universally accepted
standards of human rights. To widen understanding of the concept of “governance”,
it may be helpful to look at a couple of definitions from non-legal sources.
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75. Habitat for Humanity, in a write-up entitled “The Global Campaign for Good
Urban Governance” (Draft 3 of 1st December, 1999), instructively, described the
term governance as both “complex and controversial”. The same write-up gave a
definition of good governance in an urban context as under:
“Good [urban] governance… can be defined as an efficient and effective response to
[urban] problems by accountable [local] governments…”
76. According to a United Nations Development Programme (UNDP) Report entitled
‘Governance for Sustainable Growth and Equity: Report of the Growth and Equity of
the International Conference’ (New York: United Nations, 1997), governance refers
to:
“the exercise of political, economic and administrative authority in the management
of a country’s affairs at all levels… it incorporates the complex mechanisms, processes
and institutions through which the citizens and groups articulate their interests,
mediate their rights and obligations”
77. Simply put, governance refers to the organization of society and management of its
affairs. Governance can be good or bad. The expression “good governance” appears
to be a fundamentally political, philosophical and elastic subject, it connotes sound
management of societal affairs and what that entails.
78. This Court notes that the issue of extended jurisdiction of the EACJ did not come
as an afterthought. It was acknowledged as an important complement of the Court
right at the inception of the Community, the Court being recognized as a vital
component of good governance which the Community Partner States undertook to
abide by as Article 7(2) of the Treaty clearly demonstrates.
79. The Applicant has pointed out that the Treaty obliges Partner States vide Article
8(1)(c) to abstain from any measures likely to jeopardize the achievement of the
objectives or the implementation of the provisions of the Treaty. The Court further
notes that the objectives of the Community are given in Article 5 as including the
development of policies and programmes aimed at widening and deepening co-
operation among Partner States in legal and judicial affairs.
80. The Court hears the Applicant to be saying that the fundamental principles that
govern the achievement of the objectives of the Community are stipulated in Article
6 and that, by virtue of Article 6(d), include good governance. We understand the
Applicant to say in his Ground 1 of this Reference that notionally he has a right of
appeal to the EACJ under Articles 6, 7(2), 8(1)(c) , 23, 27(2) and 30; and that he is
calling upon the Community to take quick action to conclude the protocol in order ,
inter alia to enable him and other interested litigants “preserve” their right of appeal
to the EACJ under the aforementioned Articles.
81. To the extent that the Applicant purports to speak for other prospective appellants
from decisions of national courts to the EACJ, we find his claim to be exaggerated
since the present Reference was not brought as a representative suit. The Applicant
can legitimately only speak for himself.
82. It is clear from the Applicant’s pleadings and submissions that he had hoped that the
anticipated extended jurisdiction of the EACJ would include appellate jurisdiction
over the decisions of the Partner States’ highest courts even in electoral matters,
so that he could, for instance, appeal against the decision of the Supreme Court of
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Uganda in Election Petition Appeal No. 6 of 2009, Hon. Sitenda Sebalu – vs – Hon.
Sam K. Njuba and Electoral Commission of Uganda.
83. The Applicant says his above legitimate expectation has been frustrated, inter alia , by
the delay of the 2nd Respondent, representing the Republic of Uganda, in submitting
written comments on the draft protocol. As we understand it, the Applicant believe
that the 2nd Respondent has contributed significantly to the delay in conclusion of
the protocol on extended jurisdiction of the EACJ by holding back requisite written
comments on the zero draft thereby contravening the principles of good governance
under Article 6(d) of the Treaty.
84. In their joint response filed on 8th November, 2010 to the Reference, the 2nd and 4th
Respondents, both Ugandan entities, gave eight reasons as justification for further
consultations which revolved around the following: –
85. The impact of the extension of the country membership of the East African
Community to include the Republic of Burundi and the Republic of Rwanda, both
of whose legal systems differ from other Partner States’ common law systems;
(b) The reconstitution of the EACJ following amendments in 2006 of Chapter Eight of
the Treaty (creating a First Instance Division and an Appellate Division);
(c) The need to make the EACJ a permanent institution of the Community in view of
the Court’s growing role as a regional judicial forum and the extended jurisdiction;
(d) A proposal that pending the attainment of a political federation, original and appellate
jurisdiction in matters of human rights should be a primary obligation of national
courts and the same be left at national level;
(e) Granting appellate jurisdiction to the EACJ may necessitate amendment of some of
the Partner States’ constitutions and other relevant national laws;
(f) The fact that some Judges currently serving on the EACJ would be considering on
appeal, matters they had already considered in their national courts;
(g) The EACJ’s lack of capacity given the fact that by virtue of Article 140(4) of the Treaty,
the Judges are serving on ad hoc basis;
(h) The need to clarify the role of the Commissions for Human Rights vis-a-vis the East
African Community’s programmes on good governance, promotion and protection
of human and people’s rights; in this regard, these Commissions’ access to the EACJ,
whether as amicus curiae or otherwise, needs to be determined.
86. The Court notes from the Report of the Consultative Session of the Deputy Attorneys
General, Solicitors General and Permanent Secretaries held on 19th March 2010
(Annex XII to the 1st Respondent’s Response to the Reference) paragraph 2.4.1 that
the majority of those concerns alluded to above had been raised way back in January,
2009.
Our comments on the above reasons are as hereunder:-

87. As to the reasons in (a) and (e), the Court observes that the founding member
countries of the Community with common law legal systems voluntarily formed
the Community. The member countries with civil law legal systems which came
on board later voluntarily joined a going concern. It is reasonable to assume that
the member countries, as Sovereign States, considered it beneficial to join the
Community, which is governed by the Treaty establishing it. As this Court observed
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in Anyang’’ Nyong’o(supra):
“While the Treaty upholds the principles of sovereign equality, it must be
acknowledged that by the very nature of the objectives they set out to achieve, each
Partner State is expected to cede some amount of sovereignty to the Community and
its organs albeit in limited areas to enable them play their role.”
88. In this regard, attention is drawn to Article 8(2) which obligates each Partner State,
within twelve months from the date of signing the Treaty, to secure the enactment
and effective implementation of such legislation as is necessary to give effect to the
Treaty. It is, therefore, a natural consequence that national activities of Partner
States touching or impacting on the Community have of necessity to accord due
reverence to the Treaty, which constitutes East African Community law.
89. Reason (b) seems to be tied up with the 2nd and 4th Respondents’ submissions
suggesting that appellate jurisdiction is already provided for under Articles 35A; that
in the case of Uganda, the Supreme Court is the last appellate court in that country;
that an appeal is a creature of statute and that no statute has been cited to show
where the Applicant derives his purported appellate right from.
90. The short answer to the above submissions, as indicated earlier, is that the appellate
jurisdiction provided for by Article 35A relates to internal appeals within the EACJ
itself, from the First Instance Division to the Appellate Division; and that such
appeals are limited to points of law, grounds of lack jurisdiction, or procedural
irregularities. The said appellate jurisdiction has nothing to do with appeals from
national courts, which are not catered for in the Treaty at the moment.
91. Reasons in (c) and (g) revolve on the Court’s capacity to deliver on its mandate. In
this regard, the Court wishes to place on record that the situation on the ground is
that litigation before the EACJ has been building up but cases cannot be heard as
they come, precisely because the Judges serve on ad hoc basis while otherwise being
engaged on full-time assignments in their respective Partner States.
92. The Judges’ ad hoc status at the EACJ is neither of the Court’s making nor is it cast
in stone. It is also our reading Article 140 (4) of the Treaty that the Court’s ad hoc
status was a temporary measure which would be reviewed to ensure that it does not
become an impediment to the Court’s proper discharge of its mandate. It does not,
therefore, make sense to use the Judges’ ad hoc status as a ground to delay the issue
of the extended jurisdiction of the Court.
93. With regard to reason (d), this Court wishes to draw attention to Article 6(d) of
the East African Community Treaty which urges the Partner States, inter alia, to
recognize, promote and protect human and people’s rights in accordance with the
provisions of the African Charter on Human and People’s Rights. National courts
have the primary obligation to promote and protect human rights. But supposing
human rights abuses are perpetrated on citizens and the State in question shows
reluctance, unwillingness or inability to redress the abuse, wouldn’t regional
integration be threatened? We think it would. Wouldn’t the wider interests of
justice, therefore, demand that a window be created for aggrieved citizens in the
Community Partner State concerned to access their own regional court, to wit, the
EACJ, for redress? We think they would.
94. As regards reason (f), this Court does not see this as a significant or unsurmountable
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problem since there is an established judicial tradition for such Judges to disqualify
themselves in appropriate circumstances.
95. Finally, reason (h) registered the need to determine the mode and extent of access by
national commissions on human rights to the EACJ on matters pertaining to good
governance, promotion and protection of human and people’s rights. It is important
for such determination to be made. That must be one reason why opportunity was
afforded for the series of consultative workshops alluded to by the 1st Respondent.
The workshops have so far been inconclusive.
96. The Applicant is questioning the indecisiveness of and procrastination by the
2nd Respondent and the other defaulting party, thereby delaying or frustrating
the declared objective of extended jurisdiction of the EACJ. This Court finds the
Applicant’s concerns justified as the delay not only holds back and frustrates the
conclusion of the Protocol but also jeopardizes the achievement of the objectives and
the implementation of the provisions of the Treaty and amounts to an infringement
of Article 8(1)(c) of the Treaty.
97. When delay like the one the Applicant complains about persists at the instance of
some Partner States and the 1st Respondent, representing the Community, takes no
effective corrective measures, such as invoking Article 29 of the Treaty, justification
arises for a complainant to seek alternative legal means of obtaining redress. The
EACJ is a legitimate avenue through which to seek redress, even if all the Court does
is to make declarations of illegality of the impugned acts, whether of commission or
omission. It would be well to remember that the court is a primary avenue through
which the people can secure not only proper interpretation and application of the
Treaty but also effective and expeditious compliance therewith.
98. In the written submissions by the 1st Respondent it was contended that:
“The extension of appellate jurisdiction for the East African Court of Justice is an on-
going executive function which ought to be left within the work and programmes of
the Council as required by Article 27 of the Treaty.”
99. The argument implies that a function vested in the executive is the exclusive concern
of the executive and nobody should question the manner of its implementation
or lack of it. Fortunately, that era is gone. Article 6(d) of the Treaty requires
Partner States, inter alia, to adhere to the principle of accountability as part of good
governance. The import of accountable governance is that the people can hold those
holding public office to account for the manner in which they exercise the function
of their office or for lack of exercise or for improper exercise of those functions.
100. In the present case, the Applicant is questioning the inaction or delay by the
concerned organs of the Community in concluding or causing to be concluded a
protocol on the extended jurisdiction of the EACJ. He has a right to do so; and
doing it peacefully through the EAC’s judicial forum is in the Court’s view preferable
to taking recourse to emotive methods, such as civil disobedience, which have the
potential for disrupting peace.
101. In view of the foregoing, we have no hesitation in finding that the delay to
extend the jurisdiction of the EACJ contravenes the principles of good governance
as stipulated in Article 6 of the Treaty.
Accordingly, we answer Issue No. 4 in the affirmative.
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Issue No. 5: Whether the 3rd and 4th Respondents are Nominal Respondents
102. The Applicant contended that it was impossible to raise the present Reference
before the EACJ without bringing the 3rd and 4th Respondents on board because
they were always respondents in the previous proceedings before the superior courts
of Uganda. In his view, the 3rd and 4th Respondents are nominal respondents
because the outcome of the decision of this Court will have a bearing on their rights
or liabilities arising under the cases decided by the superior courts of Uganda between
the Applicant and Hon. Sam K. Njuba and Electoral Commission of Uganda, hence
the need for the latter two to participate in this Reference as nominal respondents.
103. The 1st Respondent’s response to the Applicant’s contention was that in law, a
nominal defendant is included in a law suit because of a technical connection with
the matter in dispute and who is necessary for the court to decide all issues and make
a proper finding and judgment.
104. The 3rd Respondent submitted that it is difficult to discern what cause of action
the Applicant has against him since he (3 rd Respondent) has no dealings with the
process of extension of the protocol to extend the jurisdiction of the EACJ. The 3rd
105. Respondent’s view was that if the Applicant’s intention is that should his
contention to the effect that he has a right of appeal to the EACJ succeed he will
file an appeal, such appeal would of necessity have to be against the 3rd and 4th
Respondents in the present Reference; and that it would be at that stage when the 3rd
Respondent may legitimately be brought on board as a respondent, but not now. The
3rd Respondent added that since the Applicant is not seeking enforcement of any
provision of the Treaty as against him (3rd Respondent), no cause of action exists
against the 3rd Respondent. He drew our attention to Article 40 which permits a
resident of a Partner State who is not a party to a case before the EACJ to seek the
Court’s leave to intervene in such a case and make submissions limited to evidence
supporting or opposing the arguments of a party to the case. The 3rd Respondent
further submitted that whereas he and the 4th Respondent would themselves have
been able, with the leave of the Court, to come on board as interveners through Article
40, it was improper for them to be brought in purportedly as nominal respondents.
106. The 3rd Respondent referred the Court to the English cases of Semler-vs-
Murphy (1967) 1Ch.183 and White & Another-vs-Butt (1909) 1KB 50 in support of
his contention that a nominal plaintiff is a mere shadow, a party with no beneficial
interest. It was the 3rd Respondent’s contention that he would have a beneficial
interest in the Applicant’s intended appeal in that if it was dismissed he (3rd
Respondent) would retain his Membership of the Uganda Parliament for a full term,
while if the appeal was allowed, he would have to vacate his seat. As far as the
present Reference is concerned, however, the 3rd Respondent contended he is not
a nominal respondent; that he was wrongly brought before the EACJ; and that the
Reference should be dismissed with costs as against him.
107. Counsel for the 4th Respondent submitted that it appeared that the 3rd and 4th
Respondents were joined as parties to the Reference because they were parties to the
suits filed in the courts of judicature in the Republic of Uganda. Counsel observed
that if the EACJ were to decide the Reference in favour of the Applicant, he would
be given leave to file his appeal in the relevant Division of the EACJ wherein he
181
would state his reasons for dissatisfaction with the decision of the Supreme Court
of Uganda. He further submitted that it was not necessary for the Applicant to join
the 4th Respondent to the present Reference as a respondent, nominal or otherwise;
that 4th Respondent has incurred costs in defending this matter, which should be
reimbursed to him whether the EACJ dismisses or allows the Reference.
108. This Court notes that the Reference contains no prayers against the 3rd and
4th Respondents. No wrong-doing is alleged against them in the Reference. The
Applicant averred in his first ground that he sued the 3rd and 4th Respondents
alongside the 1st and 2nd Respondents for a declaration that he (Applicant) has a
right of appeal to the EACJ. While there are substantive prayers against the 1st and
2nd Respondents, there are none against the 3rd and 4th Respondents as already
noted. These latter two Respondents have no role regarding extension of EACJ’s
jurisdiction.
109. In Semler’s case (supra) which discussed what a nominal plaintiff is, Lord Denning
opined that a nominal plaintiff is a man who is plaintiff in name but who in truth
sues for the benefit of another. And in Butt’s case (supra), Lord Justice Buckley also
described a nominal plaintiff as one put forward by another for purposes of suing but
who has no beneficial interest in the subject matter of the litigation. We adopt the
above broad description of a nominal plaintiff, which, by analogy, conversely also
describes a nominal defendant. In the present Reference, the question is whether the
3rd and 4th Respondents are nominal defendants.
110. While both the 3rd and 4 th Respondents would be directly and immediately
interested in any appeal proceedings that might be brought before the EACJ against
the decision of the Supreme Court of Uganda in Election Petition Appeal No. 6 of
2009 if the EACJ found the Applicant herein to have such right of appeal, that stage
has not yet been reached and may actually not come as long as this Court’s negative
finding on Issue No. 2 stands. Being substantively interested in the outcome of the
aforesaid appeal, the 3rd and 4 th Respondents would not be nominal respondents in
such appeal if it materialised. In the present Reference, however, whatever interest
that might be ascribed to them would only be peripheral and distant. Whereas
they themselves might conceivably have been entitled to seek to come on board
as interveners in this Reference, we consider their joinder as Respondents to the
Reference at the instance of the Applicant premature.
Accordingly, we answer Issue No 5 in the negative.
Issue No. 6 Whether or not the parties are entitled to remedies
111. The Court has found that the Applicant has a cause of action against the 1st and
2nd Respondents based on their failure by them to fully discharge their respective
obligations under the Treaty.
112. It follows, therefore, that the Applicant is entitled to the remedy of quick action
by the East African Community to conclude a protocol to operationalise the extended
113. In arriving at this conclusion, we are fortified by the following pertinent
sentiments expressed at the East African Legislative Assembly’s 14th Sitting – First
Assembly: First Meeting – Second Session held on Tuesday 11th February, 2003:
Question to Chairperson of the Council of Ministers by Harrison Mwakyembe
182
(Tanzania):
“Is he (Chairperson of the Council) aware that the people of East Africa, during
public discussions preceding the establishment of the East African Community very
clearly and loudly wanted an apex Regional Court with a broader jurisdiction?”
Chairperson, Council of Ministers (Mr. Wapakhabulo):
“....I am one of those East Africans who was pushing for the East African Court
of Appeal.... The East African Court of Appeal was a definite Court in the earlier
Community. It made good contributions to our jurisprudence. Up to today, most
of the prominent decisions that we refer to in Courts are from that Court. And that
is what the Treaty envisages. As we integrate more and more, that will be easier. But
this is an area where members of the legal fraternity should push through so that we
can move in that direction.”
Accordingly, we answer Issue No. 6 broadly in the affirmative.
Final Orders
114. Consequent upon the foregoing, we make declaratory orders as follows:-
We grant prayers (a) and (b) in an amended form and declare that the failure or delay
by the 1st Respondent to refer the matter of the delay or failure by the 2nd Respondent
to submit comments on the draft Protocol to operationalise the extended jurisdiction of
the EACJ to the Council of Ministers is an infringement of Articles 29, 7(2), 8(1) (c) and,
particularly, 6 (d).
We grant prayer (c) in an amended form and declare that the inaction by the 2nd
Respondent is an infringement of Articles 6 (d), 7 (2) and 8(1)(c) of the Treaty.
We grant prayer (d) in an amended form and declare that quick action should be taken
by the East African Community in order to conclude the protocol to operationalise the
extended jurisdiction of the East African Court of Justice under Article 27 of the Treaty.
We award the Applicant costs as against the 1st and 2nd Respondents.
We strike off the 3rd and 4th Respondents from the Reference and direct that the
applicant shall pay their costs.
It is so ordered.
****
Emmanuel Mwakisha Mjawasi & 748 others And The Attorney General of the
Republic of Kenya
Johnston Busingye, P.J; Mary Stella Arach-Amoko, DPJ and John Mkwawa, J
September 29, 2011
Jurisdiction- No exhaustion of local remedies required - Non Retrospective Treaty

application - The doctrine of res judicata- whether the court had jurisdiction to
entertain the reference - Whether the failure by the Kenya Government to pay the
claimants’ terminal benefits contravened Treaty provisions.
Articles 6(d), 7(2), 27, 30, 33 and 34 of the Treaty for the Establishment of the East
African Community
The Applicants were seven hundred and forty nine former employees of the defunct
East African Community who alleged that the respondent had neglected, failed or
refused to pay to them pension and other benefits due to them for services they
had rendered to the defunct EAC. They averred that this was contrary to Articles
6(d) and 7(2) of the Treaty and a violation of their rights. They sought an order
compelling the Respondent to pay their terminal benefits.
Held:
1. The issues before the Court were not similar or substantially the same ones which
were litigated before the Kenya High Court. Therefore, the doctrine of res judicata
does not apply to this Reference.
2. The Applicants became aware of the acts/omissions of the Respondent by 1998, when
they filed the suit in the Kenya High Court. This was well before the Treaty entered
into force in 2000. So, although the Court has jurisdiction to hear the Reference
and it is not barred the rule of exhaustion of local remedies, it cannot entertain the
Reference on account of the non-retrospective application of the Treaty.
Cases cited:
James Katabazi and 21 Others v. The Attorney General of the Republic of Uganda, EACJ
Professor Peter Anyang Nyong’o & Others v. The Attorney General of Kenya and Others,
EACJ Reference No. 1 of 2006
184
Ruling
Introduction
1. The Claimants filed a Reference in this Court on the 24th June 2010 against the
Respondent in his representative capacity as the Principal Legal Advisor of the
Government of Kenya under Articles 6(d), 7(2), 27 and 30 of the Treaty for the
Establishment of the East African Community and the Rules of Procedure of the
East African Court of Justice (hereinafter referred to as the “Treaty” and the “Rules”,
respectively).
2. The Claimants totalling 749 alleged in the Reference that they are former employees
of the defunct East African Community (EAC). That the Kenya Government has
neglected/failed and or refused to pay to them pension and other benefits due to
them for services they had rendered to the defunct EAC. They aver that the continued
refusal, neglect and/or failure by the Respondent to pay their terminal benefits is
contrary to Articles 6(d) and 7(2) of the Treaty and a violation of their rights under
the various human rights conventions listed therein.
3. The Claimants seek from the Court declarations that the Respondent’s continued
refusal, neglect and/or failure to pay their terminal benefits for the services they
rendered to the defunct EAC constitute:
1. a breach of article 6(d) of the Treaty and in particular a travesty upon the
recognition, promotion and protection of their rights as enshrined in the African
Charter on Human and Peoples Rights of 1981.
2. a breach of Article 6(d) of the Treaty in particular the principles of accountability,
transparency and social justice.
3. a breach of Article7(2) of the Treaty in particular by failing, refusing and/or
neglecting to maintain universally accepted standards of human rights. The
Claimants also pray for:
4. an Order compelling the Respondent to pay the claimants in accordance with
their individual records, their terminal benefits for the services they rendered
to the defunct EAC including but not limited to ; pension, additional pension,
gratuity, redundancy payment in lieu of notice, one month’s salary in lieu of
notice, loss of office benefits, pension emoluments, outstanding/accumulated
leave, repatriation expenses,real value and 7 % compound interest until payment
in full
Costs of the Reference.

4. In his response, the Respondent contended that the Claimants were not entitled to
the alleged payment and also raised the points of law the subject of this Ruling. The
objections were that:
i) The Court lacks the jurisdiction to hear and determine the Reference.
ii) The matter is Res judicata.
iii) The Reference is inadmissible in this Court since local remedies have not been
exhausted.
iv) The East African Community Treaty of 2000 cannot be applied retrospectively.
v) The Claimants’ statements are mere allegations without any proof of how the Treaty
Emmanuel Mjawasi & others v AG Kenya
185
or the various conventions listed therein have been infringed by the Respondents or
that the respondent is a signatory to them.
vi) The Objectives of the Treaty under Article 5 do not provide for the redress of previous
injustices, if any, to entitle the Claimants to rely on Articles 6 and 7 of the Treaty.
5. It is necessary to point out from the outset that Counsel for the Respondent raised the
last three objections in his written submissions. They were not among the objections
he had raised at the scheduling conference. Nevertheless, we have considered them
in our ruling since it is trite law that a point of law can be raised at any stage of
the proceedings. The rationale is that it would save courts time and resources if
the objection can dispose of the case at the earliest. The record also indicates that
Counsel for the Respondents abandoned the point raised against the capacity of the
Claimants to institute these proceedings at the scheduling conference and did not
canvass it in his written submissions.
Submissions by Respondent’s Counsel

6. Counsel for the Respondent submitted, firstly, that since the Reference contains
allegations of violations of the Claimants’ human rights and is an appeal against
the decision of the Kenya High Court dismissing a similar complaint by the
Claimants in HCCS No. 1879 of 1997, in the absence of the protocol for the extended
jurisdiction of the Court, this Court lacks the jurisdiction to hear and determine
the same. Secondly, Counsel submitted that the matter is barred by the doctrine
of res judicata, having been determined by the Kenya High Court in HCCS No.
1879 of 1997 between the same parties. Thirdly, Counsel submitted that the matter is
inadmissible in this Court since the Claimants have not exhausted the local remedies
available in the Republic of Kenya. Fourthly, it was Counsel’s contention that the
Treaty has no provision for retrospective application. The matters complained of
occurred well before the Treaty entered into force in 2000. The Reference is therefore
wrongly brought before this Court which cannot entertain it since the Court itself
is a creature of the Treaty. Fifthly, Counsel attacked the Reference for being vague
without any proof. Lastly, Counsel contended that Article 5 of the Treaty is about
the Objectives of the Treaty, it cannot be used by the Claimants to bring a reference
under Article 6(d) and 7(2) for previous injustices, if any. Consequently, he prayed
that the Reference be struck out with costs.
Response by Claimants’ Counsel

7. Counsel for the Claimants opposed the objections strongly asserting that this Court
has the jurisdiction to hear and determine the Reference. He contended, firstly, that
the Reference is not about human rights violations or an appeal against the decision
of the Kenya High Court as alleged. He argued that the Reference concerns the
breach of Articles 6(d) and 7 (2) of the Treaty by the Kenya Government and the fact
that it contains allegations of violation of human rights under the conventions cited
therein cannot prevent this Court from handling the Reference. In support of this
stance he cited the decision of this Court in Reference No.1 of 2007, James Katabazi
and 21 others vs The Attorney General of the Republic Of Uganda.
8. Secondly, he disagreed that the matter was barred by the doctrine of res judicata
186
since the issues before this Court are not similar or directly and substantially in issue
before the Kenya High Court and Counsel for the claimants had not even shown that
they were the same litigants in both suits.
9. Thirdly, Counsel contended the there is no requirement for exhaustion of local
remedies under the Treaty and consequently, this Court should not entertain that
objection.
10. Counsel made no response to the last three objections on the ground that they did
not form part of the objections Counsel for the Respondent had raised and was
agreed upon during the scheduling conference. He instead went ahead to submit on
the capacity of the Claimants, a point which as we stated earlier in this ruling and is
borne out by the record of proceedings, the Respondent’s counsel had abandoned at
the scheduling conference. For that reason we have not considered it in this Ruling
as well.
Determination of the points of objection by the Court

11. After carefully considering the written submissions of both sides and the law, our
findings and conclusions are as follows:
Jurisdiction
12. The jurisdiction of this Court is stated in Article 27 read together with Article 23 of
the Treaty in the following words:
(i) The Court shall initially have jurisdiction over the interpretation and application of
this Treaty.
(ii) The Court shall have such other original, appellate, human rights and other
jurisdiction as will be determined by the Council at a suitable date. To this end, the
Partner States shall conclude a protocol to operationalise the extended jurisdiction.
Article 23 provides that: 1. The Court shall be a judicial body which shall ensure
adherence to law in the interpretation and application of and compliance with this
Treaty.
13. It is not in dispute that the steps in Article 27(2) have not yet been taken. It follows
therefore, that this Court may not adjudicate on disputes concerning violation of
human rights per se. The Court has no appellate jurisdiction as well. However, in this
Reference, this Court is neither being asked to adjudicate on a dispute concerning
violation of human rights per se nor to exercise an appellate jurisdiction over the
decision by the Kenya High Court. The Court is being asked to determine whether
the alleged failure by the Kenya Government to pay the Claimants their terminal
benefits constitutes a violation of Articles 6(d) and 7(2) of the Treaty. The fact that
the Reference also contains allegations of violations of human rights under the
conventions listed therein cannot prevent this Court from exercising its mandate
under Article 27(1) of the Treaty. We have considered this objection and come to the
same conclusion in a number of references including James Katabazi & 21 Others‐
vs. ‐ The Secretary General of the EAC and the AG of the Republic of Uganda(supra).
We still hold the same view. This point of objection is accordingly overruled.
187
Res Judicata
14. The doctrine is defined in the Civil Procedure Acts of Kenya, Uganda and Tanzania
as follows: No Court shall try any suit or issue in which the matter directly and
substantially in issue in a former suit between the same parties, or between parties
under whom they or any of them claim, litigating under the same title, in a court
competent to try such subsequent suit in which such issue has been subsequently
raised, and has been heard and finally determined by such Court.
15. The doctrine has been applied in this Court in a number of references including
James Katabazi & 21 others (supra) where the Court stated that for the doctrine to
apply:
(i) the matter must be ‘directly and substantially’ in issue in the two suits,
(ii) the parties must be the same or parties under whom any of them claim, litigating
under the same title; and
(iii) the matter must have been finally decided in the previous suit.
16. In the present Reference, the issue which this Court is being called upon by the
Claimants to determine is basically, whether the alleged failure, neglect and/or
refusal to pay the claimants their terminal benefits for the services they rendered
to the defunct EAC violate the principles of accountability, transparency, social
justice, and also fall below the universally accepted standards of human rights and
are therefore an infringement of Articles 6(d) and 7(2) of the Treaty. In deciding
this issue, the Court will be required to interpret the provisions of the Articles cited.
17. On the other hand, the issues framed by the Court in the HCCS No.1879 of 1997
were:
“Firstly, when was pension payable?
Secondly, had the Government complied with the Mediation Agreement?
Thirdly, should the declarations and orders sought be granted?
Fourthly, in any event is the suit time barred?
Fifthly, who should pay the costs?”
In that case, as can be discerned from the judgment, the Kenya High Court
interpreted and applied the provisions of the Mediation Agreement as well as the
relevant Kenyan laws.
18. From the foregoing, it is clear that the issues before this Court are not similar or
substantially the same ones which were litigated before the Kenya High Court. We
therefore agree with the Claimants’ Counsel that the doctrine of res judicata does not
apply to this Reference.
Exhaustion of local remedies

19. The rule is to the effect that a state should be given an opportunity to address an
alleged wrong within the framework of its own domestic legal system before its
international responsibility can be called into question. The exemption is where
the domestic remedy is unavailable or may result into undue delay. It has been
incorporated into several human rights conventions including the African Charter
on Human and People’s Rights (See Article 50). It is a question of admissibility and
not of substance. There is, however, no express provision in the Treaty requiring the
exhaustion of local remedies before filing a Reference in this Court. Under Article
188
27(1) of the Treaty, matters requiring interpretation and application of the Treaty
such as the instant Reference are admissible in this Court.
20. This Court dealt with this issue in Reference No. 1 of 2006, Professor Peter Anyang
Nyongo & Ors vs The Attorney General Of Kenya and Others and the Court stated as
follows at pages 20 to 21 of the judgment: Under Article 33(2), the Treaty obliquely
envisages the interpretation of the Treaty provisions by national courts. However,
reading the pertinent provisions with Article 34 leaves no doubt about the supremacy
of this Court’s jurisdiction over the interpretation of provisions of the Treaty.
21. For clarity, the provisions of the two Articles were reproduced. Article 33 provides
that: ‘’1. Except where jurisdiction is conferred on the Court by the Treaty, disputes
in which the Community is a party shall not on that ground alone be excluded
from the jurisdiction of the national courts of the Partner States. 2. Decisions of the
Court on the interpretation and application of this Treaty shall have precedence
over decisions of the national courts on a similar matter.’’ Article 34 provides that:
“Where a question is raised before any court or tribunal of a Partner State concerning
the interpretation or application of this Treaty or the validity of the regulations,
directives, decisions or actions of the Community, that court or tribunal shall, if it
considers that a ruling on the question is necessary to enable it to give judgment,
request the Court to give a preliminary ruling on the question”.The Court said that
the purpose of these provisions is obviously to ensure uniform interpretation and
avoid possible conflicting decisions and uncertainty in the interpretation of the same
22. The Court further pointed out in Reference that: “Article 33(2) appears to envisage
that in the course of determining a case before it, a national court may interpret
and apply a Treaty provision. Such envisaged interpretation, however, can only be
incidental. The Article neither provides for nor envisages a litigant directly referring
a question as to the interpretation of a Treaty provision to a national court. Nor is
there a provision directly conferring on the national court’s jurisdiction to interpret
the Treaty. Article 30 on the other hand, confers on a litigant resident in a partner
state the right of direct access to the Court for determination of the issues set out
therein. We, therefore, do not agree with the notion that before bringing a Reference
under Article 30, a litigant has to “exhaust the local remedy”. In our view there is no
local remedy to exhaust.’’
We share the same view and accordingly, overrule this objection as well.
The Retrospective Application of the Treaty

23. The Vienna Convention on the Law of Treaties provides in Article 28 that: “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 fact which took place or any situation
which ceased to exist before the date of the entry in force of the treaty with respect
to that party”.
24. According to the above provisions, a treaty cannot be applied retrospectively unless
a different intention appears from the treaty, or is otherwise established. In the
absence of a contrary intention therefore, a treaty cannot apply to acts or facts which
took place or situations which ceased to exist before the date of its entry into force.
189
25. Form the pleadings on record; it is clear that the Claimants became aware of the acts/
omissions of the Respondent complained of by 1998, when they filed the suit in the
Kenya High Court. That was well before the Treaty entered into force in 2000.
26. There is no contrary intention from the reading of the Treaty that it was to apply
retrospectively and none has been established by the Claimants.
This point of objection is accordingly upheld.
The Claim is a Mere Allegation.

27. This criticism has no basis in our view. The pleadings are clear. The Claimants allege
that the respondent has breached specific Articles of the Treaty. The Claimants set
out details in the supporting affidavits and annextures. That is all that is required of
a Claimant under Rule 37 which provides that: ‘’…..every pleading shall contain a
concise statement of material facts upon which the party’s claim or defence is based
not the evidence by which those facts are to be proved’’.This point of objection is
accordingly overruled.
The Objectives of the Treaty

28. The import of this point of objection is similar to objection No. 4 and the answer is
the same. This objection is upheld.
Conclusion
29. In conclusion, we rule that although the Court has jurisdiction to hear the Reference
and that it is not barred by the doctrine of res judicata or the rule of exhaustion of
local remedies, nonetheless, it cannot entertain the Reference on account of the non-
retrospective application of the Treaty.
The Reference is accordingly struck out with costs to the Respondent.

It is so ordered.
****
Independent Medical Unit And The Attorney General of the Republic of Kenya,
The Minister for Internal Security of Republic of Kenya, The Chief of General Staff
of Republic of Kenya, The Commissioner of Police of the Republic of Kenya & The
Johnston Busingye, PJ, Stella Arach-Amoko DPJ, John Mkwawa J, Jean-Bosco Butasi J,
Benjamin Kubo J
June 29, 2011
Jurisdiction on human rights issues - Limitation of time- Preliminary objection-

Officers employed by a Partner State wrongly joined as parties - Whether there was a
cause of action against some of the respondents.
Article 6, 7(2), 30 of the EAC Treaty - Rule 24 of the EACJ Rules of Procedure, 2010
The Applicants contends that the failure by the 1st, 2nd, 3rd, and 4th Respondents
to take measures to prevent, investigate or punish those responsible for executions,
acts of torture, cruelty, inhuman and degrading treatment of over 3,000 Kenyans
resident in Mount Elgon District which were carried out by the Respondents jointly
between 2006 and 2008, violated the Treaty, several International Human Rights
Conventions and the Kenya Constitution.
The Respondents raised several preliminary objections including lack of jurisdiction

on human rights issues, limitation and lack of a cause of action.
Held:
1. The Court shall not abdicate its duty to interpret the Treaty merely because Human
Rights violations are mentioned in this Reference.
2. The 2nd, 3rd, and 4th Respondents were merely officers employed in the Republic
of Kenya and the maintenance of law and order was the sole responsibility of the
Republic of Kenya. They were wrongly joined to the Reference and the correct party
was the Attorney General of the Republic of Kenya.
3. The pleadings did not disclose any cause of action against the 5th Respondent
4. That the matters complained of were failures in a whole continuous chain of
events from when the alleged violations started until the Claimant decided that the
Republic of Kenya had failed to provide any remedy for the alleged violations. And
that such action or omission of a Partner State cannot be limited by mathematical
computation of time.
Cases cited:
James Katabazi and 21 others v TheSecretary General of the EAC and Another, EACJ
Independent Medical Legal Unit v AG Kenya and others
191
Modern Holdings East Africa Ltd v Kenya Ports Authority, EACJ Reference No.1 of 2008
Prof. Anyang Nyongo and Others v the Attorney General of the Republic of Kenya,
EACJ Reference No. 1 of2006
Editorial Note: On Appeal, it was held that the Reference was time-barred as the Treaty
did not recognize any continuing breach or violation.
Ruling
1. The claimant brought a reference to this Court under Article 30 of the Treaty for
the Establishment of the East African Community “the Treaty”. In the reference,
the Claimant contends that the failure by the 1st, 2nd, 3rd, and 4th Respondents
to take measures to prevent, investigate or punish those responsible for executions,
acts of torture, cruelty, inhuman and degrading treatment of over 3,000 Kenyans
resident in Mount Elgon District which were carried out by the Respondents jointly
and severally between 2006 and 2008, violated several International Human Rights
Conventions, the Kenya Constitution as well as the Treaty. The Respondents opposed
the Reference and prayed that it be dismissed with costs.
2. This ruling is in respect of preliminary objections raised by Counsel for the
Respondents to the Reference when it came for scheduling conference on the 2nd
December 2010 on the following points of law:‐
1) The jurisdiction of the Court.
2) Non‐compliance with Rule 24 of the EACJ Rules.
3) Joinder of the 2nd, 3rd, and 4th Respondents.
4) Cause of action against the 5th Respondent.
5) Limitation.
After carefully considering the submissions made by both sides and perusing the
pleadings on record, the following are our findings and conclusions:
Jurisdiction:
3. It was contended by Counsel for the Respondents that the Court is being asked to
exercise jurisdiction and address issues of human rights raised in the Reference, but
that the Court has no jurisdiction to do so since the Court’s jurisdiction is at the
moment restricted to the interpretation and application of the Treaty under Article
27(1). He argued further that Article 27(2) expressly excludes the jurisdiction to deal
with human rights issues until the Court is granted extended jurisdiction through a
subsequent protocol which has not yet been concluded.
4. Learned Counsel for the Claimant disagreed. Her contention was that the Court
has jurisdiction to entertain this Reference. Counsel relied on the provisions of
the Vienna Convention on the Law of Treaties that require a Treaty to be read,
interpreted and performed in good faith.
Counsel further relied on Article 27 of the Treaty and submitted that the reference
before Court invokes the Court’s jurisdiction to interpret and apply the provisions of
the Treaty. That in particular, the reference seeks to invoke the Court’s jurisdiction
to hear and determine whether the 1st to 4th Respondents have breached the
192
fundamental principles of the Treaty including:
(a) The rule of law under Articles 6 and 7(2).
(b) Promotion and protection of human rights in accordance with the African
Charter on Human and People’s Rights under Article 7(2).
(c) Good governance under Article 6 and 7(2) and
(d) Maintenance of universally accepted standards of Human Rights under Article
7(2).
5. Counsel also cited Ref. No.1 of 2007 James Katabazi and 21 Others vs The Secretary
General of the EAC and Another, where this Court held that although it does not
have jurisdiction to deal with human rights issues yet, it has jurisdiction to interpret
the Treaty even if the matters complained of include Human Rights violations.
6. We agree with Counsel for the Claimant. The allegations set out in the reference
are that the 1st to 4th Respondents jointly and severally carried out executions,
torture, cruel, inhuman and degrading treatment of over 3,000 Kenyans resident in
Mt. Elgon District, between 2006 and 2008 and that the Republic of Kenya took no
measures to prevent,investigate or punish the perpetrators of those actions.
It is alleged that this contravened several International Human Rights Conventions
such as the Universal Declaration of Human Rights, International Law as well as the
Kenyan constitution and laws and the Treaty particularly in paragraphs 64, 65, 66,
67, 70, 71, and 72 where the Claimant makes reference to Articles 4, 5(1) (3), and
6(d) of the Treaty.
7. Article 6 (d) reads: “The fundamental principles that shall govern the achievement
of the objectives of the Community by the Partner States shall include:
(a) ………
(b) ………
(c) ………
(d) good governance including adherence to the principles of democracy, the rule
of law, accountability, transparency, social justice, equal opportunities, gender
equality, as well as the recognition, promotion and protection and protection of
human and people’s rights.”
8. In the Katabazi case, this Court was confronted with a similar objection. After
considering the objectives of the Community as set out in Article 5(1), the fundamental
principles of the Community particularly in Article 6(d), the operational principles
in Article 7, as well as Article 8(1) where
Partner States undertake, among other things to:
“Abstain from any measures that are likely to jeopardize the achievement of those
objectives or implementing of the provisions of this Treaty”,
Court held that:

9. “While the Court will not assume jurisdiction to adjudicate on human rights disputes,
it will not abdicate from exercising its jurisdiction of interpretation under Article
27(1) merely because the reference includes allegations of human rights violations.”
10. Similarly, in this Reference, Court shall not abdicate its duty to interpret the
Treaty merely because Human Rights violations are mentioned in the Reference.
In the result, we hold that this Court has jurisdiction to entertain the Reference. 2
Independent Medical Legal Unit v AG Kenya and others
193
Noncompliance with Rule 24 of the EACJ Rules: This Rule provides that: “24….
(4)Where the reference is made by a body corporate the application shall be
accompanied by documentary evidence of its existence in law.”
11. The Claimant is described in the Reference as a Non-Governmental Organisation
established in Kenya and registered under the Non-Governmental Organisations
and Coordination Act of 1999. Initially the Certificate of Registration was not
attached to the Reference. This anomaly was later on rectified after an application
by the Claimant’s Counsel and the Registration Certificate was filed in Court.
Consequently it is no longer an issue.
Joinder of the 2nd, 3rd, and 4th Respondents

12. It was contended by Counsel for the 2nd, 3rd and 4th Respondents that they were
wrongly joined to the Reference since they are neither Partner States nor Institutions
of the Community and therefore do not fall under the ambit of Article 30 of the
Treaty.
13. That they are officers employed by the Republic of Kenya. That the maintenance of
law and order is the sole responsibility of the Republic of Kenya, hence the correct
party should be the Attorney General of the Republic of Kenya.
14. Counsel for the Respondents relied on the ruling of this Court in Ref. No. 1 of 2006,
Prof. Anyang Nyongo and Others vs the Attorney General of the Republic of Kenya
and Ref. No.1 of 2008, Modern Holdings East Africa Ltd vs Kenya Ports Authority in
support of their contention.
15. The Claimant’s Counsel made a brief response in which she contended essentially
that this objection was misconceived and should be dismissed.
16. We have carefully perused the pleadings and the authorities cited. We entirely agree
with Counsel for the 2nd, 3rd, and 4th Respondents that they are merely officers
employed in the Republic of Kenya. The correct party is the Attorney General.
17. In the Anyang Nyongo case (supra), the 2nd,5th and 6th respondents were sued as
Clerk to the National Assembly of the Republic of Kenya, the Vice‐ President of the
Republic of Kenya and the Leader of Government Business and Chairman of NARC
Kenya, a Political party,respectively. It was argued very strenuously by Counsel for
the applicants that since a natural person has the capacity to sue in this Court, a
natural person must have the capacity to be sued in the same Court as well.
That Article 30 should be interpreted to bring persons who commit misfeasance and
who infringe the provisions of the Treaty,within the ambit of Article 30, to account
for their actions.
18. This is what the Court said:‐
“With due respect to Counsel for the Applicants, it appears to us that enjoining
the 2nd, 5th and 6th Respondents to the reference were under a misconception. 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 States or
of institutions of the Community. The alleged collusion and connivance, if any, is
not actionable under Article 30.”
The preliminary objection was upheld and the said Respondents were struck off the
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reference with costs.
19. In the case of Modern Holdings (supra), Court once again upheld an objection
where the Respondent was not an institution or a Partner State of the Community.
Similarly in this case, we are satisfied that the 2nd, 3rd and 4th Respondents were
wrongly joined to the Reference and we order that they be struck off with costs.
Cause of Action Against the 5th Respondent

20. It was contended by Counsel for the 5th Respondent that the pleadings do not
disclose any cause of action in the Reference against his client. On the other hand,
Learned Counsel for the Claimant insisted that there is a cause of action against the
5th Respondent.
21. With due respect to learned Counsel for the Claimant, we have perused the pleadings
and we find that they do not disclose any cause of action against the 5th Respondent
in that there are no allegations or complaints against the 5th Respondent. There are
also no remedies sought against him. We accordingly find merit in this objection
and order that the 5th Respondent be struck off the reference with costs.
Limitation:
22. It was contended on behalf of the Respondents that the pleadings show that the
complainant was aware of the complaint way back in 2008 and that, therefore, the
Reference is barred by limitation in that it was filed outside the 2 months limitation
period stipulated under Article 30(2) of the Treaty.
23. Counsel for the Claimant submitted that the Reference is not time barred in that,
the matters complained of are criminal in nature and concern the Rule of Law,
good governance and justice which do not have any statutory limits. The case of
Stanley Githunguri ‐ vs ‐ Republic (1986) KLR 1 and Republic ‐ vs ‐ Gray Exparte
Graham (1982) 3 All ER 653 were cited in support of this submission. Article 30 (2)
provides that proceedings: “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;”
24. Upon careful consideration of this point of objection, it is our considered view, that
the matters complained of are failures in a whole continuous chain of events from
when the alleged violations started until the Claimant decided that the Republic of
Kenya had failed to provide any remedy for the alleged violations. We find that such
action or omission of a Partner State cannot be limited by mathematical computation
of time.
We accordingly overrule this objection.
25. In conclusion, we rule that:

1) This Court has jurisdiction to handle this matter.
2) Rule 24 was complied with.
3) The 2nd, 3rd and 4th Respondents were wrongly joined.
4) There is no cause of action against the 5th Respondent.
5)The 2nd, 3rd, 4th and 5th Respondents be struck off the reference with costs.
6) The Reference is not time barred.
****
Alcon International Ltd And Standard Chartered Bank of Uganda, Attorney

General on behalf of the Republic of Uganda & Registrar of the High Court of
Uganda
Johnston Busingye, PJ, Jean Bosco Butasi J, Isaac Lenaola J

September 2, 2013
Cause of action - Enhanced jurisdiction - Cross-border investments- Non- retroactivity

- Principles of treaty interpretation - Whether the 1st and 3rd Respondents were
properly joined in the reference- Whether Court had jurisdiction over actions taking
place before Common Market Protocol entered into force.
Article 27 (2), 30(1), 54 (2) (b), 151 of the EAC Treaty- Articles 29 (2) and 54 (2) (b)
Protocol on the Establishment of the East African Community, Common Market.
The Applicant, a construction company incorporated and registered in the Republic

of Kenya, entered into an agreement National Social Security Fund (NSSF) of Uganda
for completion of a partially constructed structure in Kampala on 21st July, 1994.
NSSF terminated the contract on 15th May, 1998 due to various defaults allegedly
committed by the Applicant.
Upon filing a claim in the High Court of Uganda against NSSF for wrongful
termination of the contract, an award was granted to the Applicant. NSSF challenged
the same before the High Court and upon dismissal, appealed to the Court of
Appeal of Uganda. The 1st Respondent issued a Bank Guarantee payable to Alcon
International Limited as the judgment-creditor upon determination of the appeal.
On 25th August, 2009, the Appeal above was determined in favour of the Applicant
who then demanded that the 1st Respondent should honour the Bank Guarantee
and pay the decretal sum but the 1st Respondent later declined to do so.
In the meantime, an appeal had been lodged in Supreme Court of Uganda and its
judgment was delivered on 8th February, 2013. The Supreme Court set aside the
arbitral award and the judgments of the High Court and Court of Appeal returned
the case back to the High Court for fresh trial.
Prior to the Supreme Court’s decision, the Claimant had filed the present Reference
on 20th August, 2010 seeking an interpretation and application of 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. The 1st and 2nd respondent claimed
that they had been improperly brought before the court.
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Held:
1. Neither the 1st nor the 3rd Respondent were Partner State or Institutions established
by the Summit and they could not, therefore, be properly sued in that capacity before
this Court because they were not bound by the Treaty or any of its Protocols. They
were improperly sued and all the complaints against them were therefore dismissed.
2. All the issues raised by the Claimant could not be properly adjudicated by the Court
because there was no live dispute before it and no cause of action against the 2nd
Respondent. No merit was found in the Reference and it was dismissed. Each party
was to bear its own costs.
Cases cited:
Anyang’ Nyong’o and others v. the Attorney General of the Republic of Kenya and
others, EACJ Reference No.1 of 2006
Attorney General of the United Republic of Tanzania v. African Network for Animal
Welfare, EACJ Appeal No.3 of 2011
Emmanuel Mwakisha Mjawasi and 748 Others v. the Attorney General of the Republic
of Kenya, EACJ Appeal No.4 of 2011
Modern Holdings (EA) Ltd v. Kenya Ports Authority, EACJ Reference No.1 of 2008
Editorial Note: In Appeal No 3 of 2013, the Appellate Division awarded costs to the
Respondents’ holding that the Trial Court had exercised its discretion improperly.
However, the Applicant’s appeal was dismissed.
Judgment
Introduction
1. 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.
2. 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.
3. 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.
4. 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.
Alcon International Ltd v Standard Chartered Bank of Uganda and others
197
Background
5. 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:
i. Inderjit Singh Hanspal;
ii. Kultar Singh Hanspal;
iii. Davinder Singh Hanspal.
6. At the time of incorporation, the Company was called Allied Concrete Works
Limited but, it has changed its name over the years as follows:
7. 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.
8. 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.
9. 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 Ltd 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.
10. 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 USD 8,858,469.97.
11. 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.
12. 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
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and pay to it the decretal sum but later declined to do so.
13. 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.
14. 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.
15. Prior to the above decision, the Claimant had filed the present Reference on 20th
August, 2010 and it moved this Court to interpret 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

16. 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.
17. Its case can be summarized as follows:
i. 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;
ii. 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.
18. 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 interpret and apply Articles 27(2) and 151
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
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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.
19. 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

20. The 1st Respondent, the Standard Chartered Bank of Uganda Limited has argued:
a. 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;
b. 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;
c. that no demand has been made by the 3rd Respondent for the Bank to honour
the Guarantee.
f) 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.
21. Two other issues were raised by the 1st Respondent:
i. 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.
ii. It, therefore, prays that the Reference should be dismissed with costs.
Case for 2nd and 3rd Respondents

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

23. On 3rd May, 2012, a Scheduling Conference was held and the Parties agreed that the
following issues need to be determined by the Court:
a. 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;
b. Whether the Claimant has a cause of action;
c. Whether this Court has jurisdiction over acts that took place before the coming
into force of the Protocol;
d. Whether the Reference is time barred in accordance with Article 30(2) of the
Treaty;
e. 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;
f. 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;
g. Whether the Claimant is entitled to the Prayers in the Reference dated on 20th
August, 2010.
Determination
24. In the determination of the issues above, we have read and have taken note of the
following documents:
a. Reference No. 06 of 2010 itself;
b. The Responses to the Reference together with the affidavits in support of, and
opposition to the Reference;
c. The Rejoinder to the Reply to the Responses;
d. Applicant’s written submissions filed on 30th January, 2013;
e. First Respondent’s written submissions filed on 1st March, 2013;
f. 2nd and 3rd Respondents’ written submissions filed and lodged on 27th March,
2013;
g. Applicants’ rejoinders to the Respondents’ written submissions.
25. 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.
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Principles of Interpretation of the Treaty

26. 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.”
27. 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 interpret 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”.
28. 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.
29. Article 30(1) of the Treaty reads as follows:
i. “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.”
ii. “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.
iii. 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.
iv. 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.”
202
30. 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.
31. 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

32. 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.
33. 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 the
Guarantee 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.
34. 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.
35. 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
203
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.
36. 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.
37. 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
a. The fact complained of is the failure to honor the Bank Guarantee by the 1st and
3rd Respondents.
b. 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
38. The response by the Respondents on this issue is that:-
i. 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.
ii. 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.
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iii. 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.
39. 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.
40. 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.
41. 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.”
42. It cannot be gainsaid, therefore, that the Common Market Protocol constitutes an
integral part of the Treaty.
43. 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.”
44. 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.
45. 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.
46. The relevant Article of the Vienna Convention is Article 28 which addresses non-
retroactivity of Treaties.
47. 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.”
48. 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.
49. 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
2. The context for the purpose of the interpretation of a Treaty shall comprise in
205
(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.”
50. 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.)
51. 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.
52. 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.”
53. 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.”
54. 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
206
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.
55. 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.
56. 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.
57. In conclusion, we find no merit in the Reference before us and the same is hereby
dismissed.
58. 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.
***
Alcon International Ltd And Standard Chartered Bank of Uganda, Attorney

General on behalf of the Republic of Uganda , Registrar of the High Court of
Uganda
Hon. Mr. Justice Johnston Busingye, PJ, Hon. Mr. Justice John Mkwawa, J, Hon. Mr.
Justice Benjamin Patrick Kubo, J
August 24, 2011
Forum shopping- Parallel proceedings in two different courts- Whether the Claimant
had rights under the Common Market Protocol prior to its entry into force – Whether
the Reference was time-barred.
Article 27 (2), 30, 54 (2) (b) of the EAC Treaty- Articles 29 (2) and 54 (2) (b) Protocol
on the Establishment of the East African Community, Common Market.
By a contract dated 21st July 1994 and a co-finance agreement, the Claimant agreed
to construct the building now known as the Workers House in Kampala, Uganda
on behalf of National Social Security Fund (NSSF) Uganda. NSSF terminated the
aforementioned contract and the dispute was referred to arbitration. An arbitral
award was granted to the Claimant but NSSF challenged the award in the Court of
Appeal of Uganda and ultimately to the Supreme Court of Uganda which case was
still ongoing at the time of filing the Reference.
The Claimant claimed inter alia that the EACJ is a Competent Judicial Authority
with regard to the enforcement of and enhancement of trade and resolution and
settlement of disputes for the protection of cross – border investments. They sought
an interpretation and application of Articles 27(2) and 151 of the Treaty together
with Articles 29 (2) and 54 (2) (b) of the Protocol on the Establishment of the East
African Community Common Market on the enhanced jurisdiction of.
Held:
1. The Reference against the 1st, 2nd and 3rd Respondents was improperly before the
Court.
2. That it would be absurd to have parallel proceedings in two different courts, namely,
one before this Court and another in the courts in Uganda as a clash of decisions
would cause confusion between this Court and the courts in Uganda and result
in an execution stalemate. It was improper for the Claimant to have abandoned
litigating before the courts in Uganda and instead sought sanctuary in this Court.
The Reference was therefore struck out.
Editorial Note – In Appeal No. 2 of 2011, the Appellate Division observed that the Trial
Court contravened the rules by not considering all the issues for determination. The
ruling was therefore set aside and the Reference re-instated.
208
Ruling
1. The Claimant named above has brought a Reference to this Court against the
Respondents, also named above, under Articles 27 (2) and 151 of the Treaty for the
Establishment of the East African Community (the Treaty) and also under Articles
29 (2) and 54 (2) (b) of the Protocol on the Establishment of the East African
Community Common Market (the Protocol), praying for orders:
2. That this Honourable Court be pleased to interpret and apply Articles 27(2) and 151
of the Treaty for the 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
Community 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 and settlement of disputes for the protection
of cross – border investments. (sic)
3. That this Honourable Court be pleased to declare that the signing of the Protocol on
the Establishment of the East African Community 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.
4. That 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 obligation or duty expeditiously.
5. That this Honourable Court be pleased to direct the Respondents jointly and/or
severally to pay to the Claimant the Decretal sum of USD 8,858,469.97 together with
interest and costs in full under the Bank Guarantee dated 29th October 2003.
6. That this Honourable Court direct the Respondents jointly and or severally to pay to
the Claimant General Damages assessed by this Court.
7. That this Honourable Court direct the Respondents jointly and or severally to
pay interest on the sums of money due on such rates and from such dates as this
Honourable Court should direct.
8. That this Honourable Court be pleased to make such further or other orders as may
be necessary in the circumstances.
9. That the costs of this Reference be borne by the Respondents in any event.
10. The background to the instant Reference may, in the interest of brevity, be stated as
follows:-
11. In 1994 and by a contract dated 21st July 1994 together with a co-finance agreement,
Alcon International Limited agreed to construct the building now known as the
Workers House in Kampala, Uganda on behalf of National Social Security Fund
(NSSF) Uganda. It is common ground that NSSF did terminate the aforementioned
contract and that the dispute was referred to arbitration. It is further common
ground that Alcon International Limited obtained an arbitral award for the sum
of USD 8,858,469.97 together with interest and costs. NSSF challenged the award
in the Commercial Division of the High Court of Uganda. The latter affirmed the
award. Things did not stop there, as subsequently the matter landed in the Court of
209
Appeal of Uganda and at present the matter is before the Supreme Court of Uganda
Vide Civil Appeal No. 15 of 2009 where NSSF is seeking that the arbitral award be
set aside. One issue which sprang up midway and seemed to overwhelm the rest of
the issues in the case is: which Alcon International Limited is the proper beneficiary
of the USD 8,858,469.97 award. It continues to bedevil the case to this day.
12. It behoves us to mention right at the outset that the pleadings and submissions that
have been filed by the parties now before us amply establish that the Claimants
Reference in this Court is a product of a protracted litigation both outside and inside
the courts in Uganda
13. At the Scheduling Conference held on 25th February 2011 the first Respondent
raised a couple of preliminary points of law and prayed that the Court disposes of
them before proceeding to hear the main Reference.
14. The points raised were:
i. Whether the Reference is properly before the Court as against the 1st and 3rd
Respondents.
ii. Whether the Reference is time-barred.
iii. Whether the Claimant has rights under the Protocol on the Establishment of the
East African Community Common Market in respect of acts which arose prior
to the coming in force of the Protocol.
15. The law on preliminary objection is well settled and we need not belabour the same.
Suffice it to say that the Court decided to dispose of the Preliminary Objections first.
16. Canvassing the grounds of the preliminary objections, Mr. Tumusingize, learned
counsel for the First Respondent, raised a number of points in limine. In a nutshell,
he submitted as follows:-
17. Firstly, that under Article 30 of the Treaty References must be brought only as against
a Partner State or an Institution of the East African Community. In support of his
stance he referred us to the decisions of this Court in Reference No. 1 of 2006 Prof.
Peter Anyang’ Nyongo and 10 Others versus The Attorney General of the Republic of
Kenya and 5 Others and Reference No. 1 of 2008 Modern Holdings (E.A) Limited
versus Kenya Ports Authority.
18. It was his argument that as the First Respondent is neither a Partner State nor an
Institution of the Community, but is merely a private limited liability company
incorporated and registered in Uganda, it can not be joined/impleaded to a Reference
under the aforesaid Article 30 of the Treaty. He thus urged this Court to find and
hold that the Reference against the First Respondent is misconceived and bad in law.
19. Secondly, the learned counsel argued that the settlement of disputes under the
Protocol is by competent institutions in the Partner States. It was his submission
that the East African Court of Justice does not fall under the purview of the bodies
envisaged in Article 54 (2) (b) of the Protocol.
20. Thirdly, the learned counsel contended that to-date there has been no protocol to
operationalise the extended jurisdiction of the East African Court of Justice to go
to provide for original, appellate, human rights and other jurisdictions pursuant to
Article 27 (2) of the Treaty. He further argued that even if this jurisdiction had been
extended, the Reference would still be bad as against a party that is neither a Partner
State nor an institution of the Community.
210
21. Fourthly, he submitted to the effect that, to-date, there are on-going proceedings
relating to the complaint in the Reference in the Supreme Court of the Republic of
Uganda between Alcon International Limited and the National Social Security Fund
of Uganda (Supreme Court Civil Appeal No. 15 of 2009).
22. It was also his argument that the absurdity of having proceedings in two different
courts at the same time should be clear to anyone. The learned counsel wondered
what would happen to these proceedings and what would be the fate of this Reference
in the event that this Court and the Supreme Court of Uganda make conflicting
decisions.
23. In conclusion he argued that as the local remedies for settlement of this dispute have
not been exhausted, this Reference is wrongly before this Court. He thus urged
us to find and hold that the Reference is wrongly before this Court as against the
First Respondent and consequently uphold the objection raised and condemn the
Claimant to costs.
24. Ms. Patricia Mutesi, Principal State Attorney representing the Second and Third
Respondents fully associates herself with the arguments advanced by the learned
counsel for the First Respondent.
25. She urged the Court, not unlike Mr. Tumusingize for the First Respondent, to find
and hold that the claim is improperly before this Court as against 2nd and 3rd
Respondents and should be answered in the negative.
26. Mr. Fred Athuak, Learned Counsel for the Claimant, submitted in response to the
three (3) Respondents’ Submissions. In essence, he submitted as follows:-
27. Firstly, that it is important to note at the outset that from the manner in which the
preliminary issues are framed by the parties, that this Reference is properly before
this Court as against the Second Respondent, namely the Attorney General of the
Republic of Uganda.
28. 28. Secondly, the learned counsel, if we may put it in a narrow compass, categorically
contended that the Claimant is neither a Party to the proceedings before the Supreme
Court in Uganda in Civil Appeal No. 15 of 2009 nor did he agree to the purported
consent in that Appeal.
29. Thirdly, it was also submitted on behalf of the Claimant that by promulgation of the
Protocol the jurisdiction of this Court was greatly enhanced as envisaged by Article
27 (2) of the Treaty and that Article 54 of the Protocol read together with Article
27 (2) of the Treaty gave new meaning to original jurisdiction of this Court. The
learned counsel did conclude by saying that consequent to the foregoing the most
celebrated case of Anyang’ Nyongo (supra) was overtaken by events especially with
regard to Article 30 of the Treaty.
30. We have carefully considered the rival submissions of the learned counsel in support
of their respective stances.
31. First and foremost, we find it necessary to associate ourselves with the submission
of the learned counsel for the First Respondent that there is overwhelming evidence
from the material now before us that there have been and still are several cases in the
Courts of Uganda in which the instant Claimant is directly interested.
32. It is also evident from the material submitted to us for consideration and
determination for example that the Claimant was the respondent in the Court of
211
Appeal in Uganda Civil Appeal No. 2 of 2004, namely, National Social Security Fund
and W. H. Sentoogo t/a Sentoogo and Partners versus Alcon International Limited.
It is also on record that National Social Security Fund being aggrieved by that
decision appealed to the Supreme Court of Uganda in Civil Appeal No. 15 of 2009.
33. It is on the basis of the foregoing that we are unable to agree that the Claimant,
namely, Alcon International Limited is not a party to the proceedings in Uganda’s
courts, while at the same time seeking to enforce a decision from the same courts
in the Reference before us. This is amply evident in prayer No. 4 at page 10 of the
Reference filed by Alcon International Limited which reads:
“That this Honourable Court be pleased to direct the Respondents jointly and/or
severally to pay Decretal sum of USD 8,858,469.97 together with interest and costs in
full under the Bank Guarantee dated 29th October 2003.”
34. In spite of the passion with which the Claimant laboured to convince us otherwise,
we find ourselves in a position of absolute inability to resist the Respondents’
submission that currently there are judicial proceedings going on in courts in Uganda
of which the Claimant is aware and that at the moment they are at an advanced stage
of litigation; and that it would be absurd to have parallel proceedings in two different
courts, namely, one before us and another in the courts in Uganda. Indeed, a clash
of decisions would not only cause confusion between this Court and the courts in
Uganda, it would also result in an execution stalemate. We find it improper for
the Claimant to have abandoned litigating before the courts in Uganda and instead
sought sanctuary in this Court.
35. In our considered view, this amounts to forum shopping and we take this early
opportunity to say loudly and clearly that this Court finds it unprofessional and
strongly disapproves of it.
36. In the result and for the foregoing reasons, we find and hold that the Reference
is improperly before this Court as against the 1st, 2nd and 3rd Respondents.
Consequently, Issue No. 1 is answered in the negative.
37. In view of the position we have taken in disposing of this ground, we do not find it
necessary to go into the other grounds raised by the parties or tackle the remaining
objections, as this finding alone sufficiently and conclusively dispose of this Reference.
38. Consequently, the Reference is struck out with costs.
It is so ordered.
Before we pen off, we wish to express our appreciation to the learned counsel for the
parties for their industry, good research and insightful presentations which were of
immense assistance to us.
***
Mary Ariviza and Okotch Mondoh And The Attorney General of the Republic of
Kenya and the Secretary General of the East African Community
Johnston Busingye, PJ, Mary Stella Arach-Amoko, DPJ, John Mkwawa, Jean-Bosco
Butasi & Benjamin Patrick Kubo, JJ
November 30, 2011
Due process – No competence in constitutional referendum dispute resolution- Whether

the Gazette Notice on promulgation of the new Constitution of Kenya breached the rule
of law- Interim Independent Constitutional Dispute Resolution Court which violated
the provisions of peaceful resolutions of disputes.
Articles: 5(1), 6(c), (d), 7(2), 27(1), 29 and 30 of the Treaty for the Establishment of the
East African Community,
Section 60A of the Constitution of Kenya (Amendment) Act, No. 10 of 2008
In 2010, Kenya was in the process of reviewing its Constitution in a process that
would culminate in a Referendum. Under Section 60A of The Constitution of Kenya
(Amendment) Act, No. 10 of 2008, any disputes arising out of the review process
would be handled by an Interim Independent Constitutional Dispute Resolution
Court (IICDRC). While the IICDRC enjoyed the status of the High Court of Kenya, it
was not a division of the High Court of Kenya but had exclusive original jurisdiction
to hear and determine matters arising fromthe constitutional review process. Act no
10 of 2008 was silent on appeals. On 4th August, 2010 a Referendum was conducted
by the Interim Independent Electoral Commission and on 6th August, 2010 the
results were published in a gazette notice.
Subsequently, the 1st Respondent set into motion an automatic promulgation of

the New Constitution announcing that the promulgation would take place on 27th
August, 2010.
On 19th August, 2010, the Claimants lodged Petition No.7 of 2010 with the IICDRC.
They also sought an interim relief vide Application No.3 of 2010 and suspension
of the gazette notice asserting that it had been published contrary to the law. The
IICDRC disposed of petition No 7 of 2010 at inter-locutory stage during the hearing
of Application No.3 of 2010 on 24th August, 2010.
Meanwhile on 23rd August, 2010 a Certificate giving final results of the Referendum
was gazetted by the Interim Independent Electoral Commission. This happened
before the Claimants’ Petition No. 7 of 2010 had been heard and determined.
The Applicants then brought this reference as registered voters in the Republic of Kenya
Mary Ariviza and another v AG Kenya
213
alleging that the 1st Respondent had contravened the Referendum law in Kenya thus
violating the rule of law and the EAC Treaty and that the 2nd Respondent took no
action given with regard to the Treaty violations. They sought orders inter alia that:
the promulgation of Kenya’s New Constitution on 27th August, 2010 contravened
the Treaty, and in particular Articles 6(c) & (d) and 7(2), and was therefore illegal,
null and void; and that the Parliament of the Republic of Kenya should be restrained
from passing legislation to implement the replacing Constitution until the hearing
and determination of the Reference.
Held:
1. The Claimants case did not meet the required standard to establish that due process
was not followed.
2. The fact that there was a decision on Petition No. 7 of 2010 was sufficient evidence that
the Petition was heard and determined by the Interim Independent Constitutional
Dispute Resolution Court. The decision of the Interim Independent Constitutional
Dispute Resolution Court (IICDRC) complained of did not fall within the ambit of
Article 30(1).
3. The conduct and result of the Referendum was subjected to the judicial process in
Kenya, notably vide IICDRC Constitutional Petition No.7 of 2010. In its Ruling
of 26th August 2010, the IICDRC categorically stated that it was well within the
Attorney General’s and IIEC’s mandate to publish the final results. The Reference
was asking the Court to inquire into and review the decision of the IICDRC
not to hear the Petition 7 of 2010 on its merits. This was not part of the Court’s
competence as by doing so, the Court would in effect be sitting on appeal over the
Interim Independent Constitutional Dispute Resolution Court‘s decision. Thus, the
Reference was dismissed.
Case cited: Kiska Ltd vs De Angelis (1969) EA.6.
Judgment
Background
1. The Claimants averred that they were adult Kenyans duly registered as voters in
Westlands Constituency in Nairobi and Nangoma Location of Busia District in
Kenya, respectively. Ariviza added that she was an accredited polling agent for
the Church Red Card National Referendum Committee while Mondoh added that
he was an accredited observer, through the facilitation of the National Council of
Churches of Kenya (NCCK), in the Referendum carried out in Kenya on 4th August,
2010.
2. There was a review of the old Constitution of Kenya initiated by Section 47A of
the same Constitution with the aim of replacing the said Constitution. Detailed
arrangements for the review were set out in the Constitution of Kenya Review Act,
No. 9 of 2008 (“the Review Act”) and rules made thereunder. The review process
was to culminate in a Referendum whereat the people of Kenya were to vote for
or against the proposed new Constitution (replacing Constitution). In apparent
214
anticipation that disputes would arise out of the review process, specific provision
was introduced into the old Constitution vide Section 60A of The Constitution of
Kenya (Amendment) Act, No. 10 of 2008 which established an Interim Independent
Constitutional Dispute Resolution Court (IICDRC).
3. The IICDRC, while it enjoyed the status of the High Court of Kenya, was not a
division of the High Court of Kenya and had exclusive original jurisdiction “to hear
and determine all and only matters arising from the constitutional review process.”
4. Act No. 10 of 2008 which came into force on 29th December, 2008 and established
the IICDRC was silent on any appeal.
5. The Claimants took issue with various aspects of the conduct of the entire
constitutional review process, including the Referendum and the manner in which
the replacing Constitution was promulgated. In the premise they, either singly or
jointly, instituted three sets of proceedings as under:-
a) On 18th August, 2010 Ariviza filed High Court (Nairobi) Miscellaneous
Civil Application No.273 of 2010 against the Interim Independent Electoral
Commission of Kenya & Attorney-General of Kenya, being judicial review
proceedings for orders of certiorari and prohibition against Gazette Notice
No.9360 which had on 6th August, 2010 published the result of the Referendum
held on 4th August, 2010. The applicant prayed for leave to get an order of
certiorari to move to the High Court for purposes of quashing the aforesaid
gazette notice of the certificate of results of the Referendum and/or publication
of the text of the new Constitution in the Kenya Gazette. Ariviza also prayed
that she be granted an order of prohibition to prohibit the promulgation of
the Proposed Constitution of Kenya by operation of law and/or publication of
the text of the new Constitution in the Kenya Gazette. She likewise prayed for
an order that the leave granted do operate as a stay of the promulgation of the
Constitution of Kenya.
The High Court found that Ariviza’s complaint related to the management of
the Referendum process after voting, that the complaint fell within the conduct
of the Referendum and that it could be brought by way of petition before the
IICDRC in accordance with the Review Act.
In this regard, the High Court noted on 24th August, 2010 that Ariviza had
already filed an application before the IICDRC which was pending there. The
High Court concluded that in view of Sections 60 and 60A of the old Constitution,
it had no jurisdiction to deal with the Application and, accordingly, struck it out.
b) On 19th August, 2010 Ariviza and Mondoh filed in the IICDRC Constitutional
Petition No.7 of 2010 (“the Petition”) against the Interim Independent Electoral
Commission, George Chege, Hellen Mutua & the Hon. Attorney General of
Kenya seeking the following reliefs:-
i. A scrutiny and recount of all the ballot papers and counter foils, registers and
tally sheets for all votes cast on the polling day of 4th August, 2010.
ii. An independent audit of software used in transmitting results of and tallying
the votes from the Referendum of 4th August, 2010.
iii. The Referendum Result declared by the 1st Respondent be declared null and
void.
215
iv. The Respondent (sic) bears the costs of the Petition and matters incidental
thereto.
v. Such further orders as the Court may deem fit and just to grant.
6. The Petition was based on the following grounds:
i. Flouting of the law on campaigning.
ii. Irregularities on the polling day.
iii. Tallying of votes in a manner that gave an inaccurate result.
iv. Failure to follow the law in regard to the publication of the gazette notice on the
Referendum result.
7. Numerous incidents were cited to demonstrate alleged irregularities in the
Referendum process. They included:
i. Refusing the “NO” agents to accompany the ballot boxes to the Constituency
Tallying Centres and up to the National Tallying Centre at Bomas of Kenya; and
refusing the “NO” Chief Agent access to the Tallying Centre at Bomas of Kenya.
ii. The television monitor showing streaming of the Referendum results being
switched off at about 8.25 p.m. on 4th August, 2010 at the National Tallying
Centre when the “NO” result was way ahead (about 14,000 votes) of the “YES”
(about 9,000 votes).
iii. On 4th August, 2010 at about 8.35 p.m. the streaming of the results resuming but
now the “YES” leading by about 19,000 votes and the “NO” having gone down to
about 8,000 votes.
8. On 24th August, 2010 Ariviza and Mondoh filed Application No. 3 of 2010 in the
IICDRC (arising from Petition No.7 of 2010) seeking, inter alia, the following reliefs:
i. That the Honourable Court do dispense with written request for interim relief.
ii. That the Honourable Court do suspend the whole of the Gazette Notice
purportedly giving the final result of the Referendum as it was the subject before
that Court.
iii. That the Honourable Court do suspend the Promulgation of the Constitution
until the hearing and determination of Petition No.7 of 2010.
9. The Application was heard by the IICDRC which decided by a majority of three
Judges that even if they granted the interim orders sought, such orders would be in
vain for being based on a Petition they considered as inchoate (not fully developed),
because the requisite Ksh.2 million security for costs had not been deposited and in
the Judge’s opinion it was too late to deposit it within the prescribed time. The court
dismissed the Application. The other two Judges’ dissenting opinion was that there
was a valid Petition.
10. However, all the five Judges seemed to be on common ground that their Court had
been presented with a fait accompli by the act of the Interim Independent Electoral
Commission (IIEC) publishing on 23rd August, 2010 a notice in the Gazette
confirming the Referendum result as final.
11. From the pleadings on record, the reason given by the IIEC for publishing the notice
of final Referendum result was that the Attorney General and the IIEC had not been
served with the Petition by that date and that there was no impediment for the IIEC
to publish a certificate of the Referendum result as final.
216
On 13th September, 2010 Ariviza and Mondoh filed the present Reference No.7 of 2010
before this Court (EACJ).
Representation of the Parties

12. The Claimants were represented by Mrs J.W. Madahana and Mr Luka Sawe. The 1st
Respondent was represented by Ms Wanjiku A. Mbiyu and Mr Kepha Onyiso.
13. The lead Counsel for the 2nd Respondent was Mr Wilbert Kaahwa but sometimes
Mr Anthony Kafumbe or Mr Mathews Nderi Nduma stood in for him.
Revisiting the issue of jurisdiction

14. The complaints in this Reference revolve around alleged contravention by the 1st
Respondent of the Referendum law in Kenya amounting to violation of the rule of law,
thereby violating The Treaty for the Establishment of the East African Community
(“the Treaty”) to which Kenya is a party. The 2nd Respondent is accused of inaction
in the face of the aforesaid Treaty violation.
15. Concurrently with the filing of the Reference, the Claimants also filed EACJ
Application No. 3 of 2010 for a temporary injunction praying for the following
substantive Orders:
a) That the 1st Respondent be restrained and prohibited from receiving, tabling
and/or passing any legislation to implement the new Constitution of Kenya until
the hearing and determination of the Reference.
b) That any new legislation passed by the Parliament of Kenya to implement the
new Constitution be stayed until the hearing and determination of the Reference.
c) That the 2nd Respondent does commence an investigation, as provided by
Article 29 of the Treaty, into the violation of the law and the Treaty by the 1st
Respondent.
16. At the commencement of the hearing of the Application, Counsel for the 1st
Respondent raised a six-point preliminary objection revolving on the issue of
jurisdiction as in the 1st Respondent’s view the Court had no jurisdiction to
entertain even the Reference from which the Application arose. In our Ruling of 1st
December, 2010 we held that the points raised in the preliminary objection could
not be disposed of without ascertaining facts which were in dispute. We deferred
our Ruling on the preliminary objection until after hearing all arguments from both
sides. Subsequently we heard full arguments from both parties on the preliminary
objection. Counsel for the 2nd Respondent supported the preliminary objection.
17. In our Ruling of 28th December, 2010 we agreed with the Applicants that this
Court had jurisdiction to hear their Application No. 3 of 2010. We overruled the
preliminary objection and proceeded to hear the Application.
18. After hearing the Application, we delivered our Ruling on 23rd February, 2011
in which we found from the totality of the facts disclosed by the affidavits and
submissions of the parties that there were bona fide serious issues warranting to
be investigated by this Court. We, however, restrained ourselves from making any
determination on the merits of the Application and defence to it, pending substantive
consideration of the facts and applicable law after full hearing of the Reference itself.
We declined to issue the injunctive or conservatory orders sought and dismissed the
Application.
217
Grounds for and Prayers in the present Reference

19. As already recorded, on 13th September, 2010, the Claimants filed the present
Reference which they amended on 13th December, 2010 pursuant to Rule 48(a) of
the East African Court of Justice Rules of Procedure; the East African Community
Treaty (1999) Articles 5(1), 6(c) &(d), 7(2)(c) [sic], 27(1), 29 & 30; the African
Charter on Human and People’s Rights Articles 1, 3, 7(1) & 9(2). The Reference
was based on the following summarized grounds:
That the 1st Respondent, under Section 47A (of the replaced Constitution), received
a draft Constitution and his mandate was only to make editorial changes. Instead he
made changes (some substantial) to the draft and on 6th August, 2010 he purported
to publish, under Section 34 of the Review Act, a draft Constitution with a confusingly
different and misleading title.
That the Applicants (Ariviza & Mondoh) contend that the publication of a
document with a materially different title with which the electorate was faced was
stage-managed by the 1st Respondent to cause confusion amongst the voters most
of whom could not ordinarily be expected to know the difference, import and legal
implications of the title.
a) That on 4th August, 2010 a highly flawed Referendum was conducted by the
Interim Electoral Commission (sic) and the result was published on 6th August,
2010 in a gazette notice and which certificate of result was in the view of the
Claimants contrary to law, null and void ab initio.
b) That on the basis of the said gazette notice the 1st Respondent set in motion an
automatic promulgation of the New Constitution, a document which was not in
the public domain, within fourteen days of the said publication under the Review
Act. This was borne out by the announcing to the public that the promulgation
of the Constitution would be on 27th August, 2010.
c) That on18th August, 2010 the Claimants unsuccessfully moved the High Court of
Kenya (vide Miscellaneous Civil Application No.273 of 2010) for Judicial Review
Orders as the issue was of great fundamental importance, for promulgation of
the Constitution would under Article 264 (of the replacing Constitution) repeal
the (old) Constitution resulting in the loss of the Claimants’ ascertained rights
and freedoms.
d) However, on 24th August, 2010 the High Court declined to deal with the matter
citing ousting of its jurisdiction by Sections 60 – 60A of the replaced Constitution.
e) That being dissatisfied by the conduct and result of the Referendum, Ariviza and
Mondoh on 19th August, 2010 lodged in the IICDRC Constitutional Petition
No.7 of 2010 within the period stipulated by the Review Act, No.9 of 2008 as
amended by the Statute Law (Miscellaneous Amendment) Act, No.6 of 2009.
f) That on 23rd August, 2010 the IIEC gazetted a notice of certificate final
Referendum result in spite of the pending IICDRC Constitutional Petition No.7
of 2010 before that Court.
g) That on 24th August, 2010 Ariviza and Mondoh lodged IICDRC Application
No.3 of 2010 seeking suspension of the above gazette notice they asserted to have
been published contrary to the law.
h) That the Review Act provided for the Petitioner to serve upon the Attorney
218
General (1st Respondent) a notice of the filing of a Petition challenging the
Referendum within seven days after such filing, whereupon the Attorney General
should within seven days of service of the said notice publish a notice of the filing
of the Petition in the Kenya Gazette; but in express contravention of the law, the
Attorney General failed to gazette the said Petition.
i) That under Section 47(1) of the Review Act no hearing of the aforesaid Petition
could commence until seven days after publication of the requisite notice. The
Claimants contend that non-publication of the notice effectively denied them
their fundamental right to be heard in their cause, thus contravening their basic
human rights.
j) That meantime the 1st Respondent in violation of the rule of law is moving Bills
in the National Assembly that would give effect to the replacing Constitution
whose legitimacy is in grave doubt and which is being operationalised in defiance
of the rule of law and democratic principles.
k) That the Claimants contend that the 1st Respondent set up a Court (IICDRC)
whose independence was not guaranteed and which though admitting
jurisdiction reiterated its lack of powers to stop illegalities being
l) committed to ensure promulgation of the Constitution takes place despite the
flouting of the law.
m) That the Claimants are aghast at the inaction by the 2nd Respondent who is
mandated by the Treaty to investigate violations of the Treaty and which the
Claimants contend has been done by the 1st Respondent who has flouted the
rule of law, democratic principles and fundamental rights to be heard by an
independent and fair court.
n) That this Honourable Court has jurisdiction to interpret and determine this very
important issue that touches on the future of the Kenyan nation.
The Claimants prayed for the following orders:

a) A declaration that the publication of Gazette Notice No.10019 on 23rd August,
2010 by the 1st Respondent through the Interim Electoral Commission (sic) was
illegal, null and void ab initio for being a violation of the fundamental operational
principles of the Community and in particular Articles 6 (c) & (d), 7(2) and 8(1)
(c) of the Treaty.
b) A declaration that the Interim Independent Constitutional Dispute Resolution
Court is not an Independent or Impartial Court within the meaning of law
capable of discharging the obligation by the Republic of Kenya under Articles
6(c) & (d) and 7(2) of the Treaty.
c) A declaration that the Applicants are entitled to be heard on their cause and to
be heard by an Independent and Impartial Court of Justice and the refusal of
the 1st Respondent to provide for this is in itself an infringement of fundamental
principles of social justice and peaceful settlement of disputes.
d) A declaration that Section 47A, amendment to Section 60 and Section 60A of
the replaced Constitution are an aberration and fundamental departure from the
doctrine of separation of powers which is the cornerstone of democracy and the
219
rule of law constituting a violation of Article 7(2) of the Treaty.

e) An order that the 1st Respondent acting through the Parliament of the Republic
of Kenya be restrained and or prohibited from tabling and or making and or
passing legislation to implement the replacing Constitution until the hearing and
determination of this case.
f) Any implementation and or operationalisation of any legislation made and or
passed by the Parliament of Kenya to implement the New Constitution be stayed
until the hearing and determination of this case.
g) A declaration that the promulgation of the New Constitution on 27th August,
2010 was in contravention of and a violation of the Treaty, and in particular
Articles 6(c) & (d) and 7(2), and was therefore illegal, null and void.
h) A declaration that there is no document in the public domain purportedly
published by the 1st Respondent that fulfils the requirements of a replacement of
the Constitution of Kenya and is in itself a violation of Article 7(2) of the Treaty.
i) A declaration that the Proposed New Constitution is not the same as the Proposed
Constitution of Kenya and is in itself a violation of Article 7(2) of the Treaty.
j) A declaration that the law as currently formulated on the Review of the
Constitution is fatally flawed and is not a valid and or legal basis for replacement
of the current Constitution being an infringement of Articles 6(c), (d) & (2) and
8(c)[sic] of the Treaty.
k) A declaration that the inaction by the 5th Respondent [sic] has aided and abetted
the violation of the Treaty in particular Articles 8(c) [sic] and 29.
l) A declaration that the Respondents have abused office and power by subverting
the rule of law and administration of justice violating the obligations under
Articles 8(c) [sic] and 29 of the Treaty.
m) Costs of this Reference.
Respondents’ Response
20. The Respondents denied the claims made by the Claimants and opposed the
issuance of any of the orders prayed for. The position of the 1st Respondent herein
was that due process was followed at all stages of the Constitutional Review Process;
that gazettement of the certificate of the final Referendum result and subsequent
promulgation of the Constitution were validly done; and that the dismissal of IICDR
Application No.3 of 2010 was in accordance with the law. For his part, the 2nd
Respondent denied failing to discharge his duties under Article 29 of the Treaty and
contended that, to the best of his knowledge, the Constitution-making process in
Kenya was smoothly conducted, supported by millions of Kenyans and that he had
no notice of any occurrence that would have necessitated his investigation.
21. Both Respondents contended that there was no wrongdoing on their part and that
the Reference should be dismissed with costs.
Agreed Issues
22. The issues for determination by this Court were agreed and framed by the Parties
during the Scheduling Conference held on 30th January, 2011 as follows:-
Issue No.1: Whether due process was followed in the presentation of the draft
220
Constitution to the Referendum and if not, did this amount to a violation of the
Rule of Law in Kenya and, by extension, a violation of the East African Community
Treaty?
Issue No.2: Whether there was failure of resolution of Petition No.7 of 2010 by the
Interim Independent Constitutional Dispute Resolution Court which violated the
provisions of peaceful resolutions of disputes.
Issue No.3: Whether or not the publication of Gazette Notice No.10019 on 23rd
August, 2010 and the subsequent promulgation of the new Constitution of Kenya
on 27th August, 2010 was a breach of the Rule of Law and, therefore, a violation of
the Treaty.
Issue No.4: Whether or not the Parties are entitled to the remedies sought.
Consideration of the Issues:

23. We now proceed to consider the Reference under the four Issues. In so doing, we
take due account of the authorities and legal literature cited by Counsel in support
of their rival claims.
24. At the outset it is pertinent to mention that the issues as agreed revolve around one
major theme, namely, the appropriateness of IICDRC’s decision in Petition No.7
of 2010. But at the risk of repeating ourselves we have decided to consider them
separately in order to be as comprehensive as this case demands.
Issue No.1: Whether due process was followed in the presentation of the draft
Constitution to the Referendum and if not, did this amount to a violation of the
rule of law in Kenya and, by extension, a violation of the East African Community
Treaty?
25. This issue has two limbs:
i. Whether due process was followed in the presentation of the draft Constitution
to the Referendum.
ii. If not, did that amount to a violation of the Rule of Law in Kenya and, by
extension, a violation of the East African Community Treaty?
26. As to the first limb, the Claimants contended that due process was not followed.
Counsel for the Claimants described due process as a legal principle that the
Government must respect legal rights that are owed to a person according to the law;
that in this case due process demanded that at least the petition before the IICDRC
should have been heard and disposed of on merit before promulgation of the New
Constitution could proceed and that because this was not done, the rule of law,
which implies due process, was violated.
27. The thrust of the Claimants’ case on the first limb is:-
a) That whereas the 1st Respondents’ mandate was only to make editorial changes to
the draft Constitution received from the National Assembly, he in fact purported
to publish on 6th May, 2010 a document entitled “The Proposed Constitution of
Kenya” to which he had made changes some of which were substantive.
b) That whereas the Referendum question was “Do you approve the proposed
New Constitution?” not enough copies of “The Proposed New Constitution”
were circulated to the voters numbering 12,656,451, it being admitted by the
1st Respondent that only 5 million copies were printed, thereby leaving out 7
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million persons.
c) That the publication of a document with a materially different title with which
the electorate was faced was stage-managed by the Respondent (sic) to cause
confusion amongst the voters most of whom could not ordinarily be expected to
know the difference, import and legal implications of the title.
d) That there were serious flaws in the proposed Constitution of Kenya which
other persons had attempted to bring to the attention of the IICDRC but which
the IICDRC declined to deal with, citing lack of jurisdiction despite the wide
jurisdiction conferred upon it by Section 60A of the replaced Constitution.
e) That on 4th August, 2010 a highly flawed Referendum was conducted by the
Interim Independent Electoral Commission and the results were published on
6th August, 2010, in a Gazette Notice and which Certificate of Results was in the
Claimants’ view contrary to law, null and void.
The gist of the 1st Respondent’s case is:
a) That due process was followed in the presentation of the Draft Constitution to
the Referendum as per the procedure prescribed by the Review Act.
b) That whereas the Claimants complained that the 1st Respondent, who was not
authorized to effect any alteration to the draft Constitution from the National
Assembly except for editorial purposes, made substantial changes to the draft
Constitution, the Claimants did not specify the alleged changes.
c) That while conceding that only five million copies of “The Proposed New
Constitution” were printed and distributed, the 1st Respondent averred that
further generic copies of the said Constitution were reproduced and distributed
to voters; and that local dailies with nationwide circulation also reproduced the
Constitution word-for-word in their editions.
d)
i. That whereas in the replaced Constitution reference was made to “draft
Constitution”, voters were clear in their minds that the draft Constitution
they were voting for was the one which had been approved by Parliament
and published by the 1st Respondent.
ii. That whereas the Claimants alleged there were flaws in “The Proposed
Constitution of Kenya” and in the Referendum, they did not specify any of
them.
28. On his part, the 2nd Respondent’s case is:
a) That there was no iota of evidence that due process was not followed in the
presentation of the Proposed Constitution of Kenya and the conduct of the
Referendum.
b) That the Claimants had the opportunity to vote for or against the Proposed
Constitution of Kenya; that Kenyans overwhelmingly endorsed the said
Constitution; and that the Claimants cannot be heard to fault the process.
c) That this Court should take judicial notice of the unanimous acclamation and
affirmation by the international observers including the 2nd Respondent and the
East African Legislative Assembly and the world at large that the process was free
and fair and a major step towards restoration of the rule of law in Kenya after the
tragic events following the 2007 general elections.
222
We have carefully considered the rival stances of the parties, the law on the subject and
we opine as hereunder:
29. In our understanding, the expression “due process” means the same thing as “due
process of law”. Simply put, “due process” and “due process of law” mean following
laid down laws and procedures. Further, “due process of law” is a component of
the principle of “the rule of law” as generally understood in Anglo-American
jurisprudence. The following literary works may serve as elaboration of the concept
of due process:
The UN Secretary-General in his report of 23rd August, 2004to the Security Council
(http://dacess-dds-ny.un.org/doc/UNDOC/GEN/04/395/29/pdf Open Element)
described the rule of law, inter alia, as follows:
“The ‘rule of law’… refers to a principle of governance in which all persons, institutions
and entities, public and private, including the State itself, are accountable to laws
that are publicly promulgated, equally enforced and independently adjudicated….
It requires, as well, measures to ensure adherence to the principles of supremacy
of law, equality before the law, accountability to the law, fairness in the application
of the law… legal certainty, avoidance of arbitrariness and procedural and legal
transparency.”
30. We adopt this amplified conceptualization of the rule of law and endorse the view
that due process of law is one of its core components.
31. In his book “The Due Process of Law”, first printed in 1980, Lord Denning, inter alia,
stated (at the Preface):
“By ‘due process’… I mean much the same as Parliament meant when it first used
the phrase… in 1354…. So by ‘due process of law’ I mean the measures authorized
by the law so as to keep the streams of justice pure: to see that trials and inquiries are
fairly conducted …; that lawful remedies are readily available; and that unnecessary
delays are eliminated.”
32. As recorded earlier, the Claimants alleged that due process was not followed in the
presentation of the draft Constitution to the Referendum. It is trite law that he/she
who alleges must prove the allegation. In the instant case the burden of proof of the
subject allegation lies on the Claimants, to be discharged on a balance of probability.
33. The Claimants alleged that several changes were made to the Draft Constitution but
did not specify the changes. They alleged, too, that the change of title from “Draft
Constitution” to “Proposed Constitution of Kenya” or “Proposed New Constitution”
was stage-managed by the 1st Respondent to cause confusion amongst voters. We
were not furnished with any evidence by way of affidavit from any voter, including
the Claimants themselves, that any Kenyan voter was confused by the change of
title. The Claimants alleged serious flaws in the Draft Constitution as well as in the
Referendum process. We were not furnished with specific examples. The claimants
alleged that the document entitled “The Proposed New Constitution” was not
circulated to the voters numbering 12,656,451 because the 1st Respondent printed
only 5 million copies. In our view, although the 1st Respondent conceded to printing
only 5 million copies, we are, respectfully, not in agreement that 7 million voters
were left out because it was shown in evidence that generic copies were printed and a
number of Kenyan dailies, like Daily Nation and The Standard, with wide circulation
223
also reproduced the Draft Constitution word for word and even carried extensive
discussions on it.
34. Having regard to the evidence, the rival submissions and jurisprudence above
cited, we are of the view that the Claimants have not made out a case that meets the
required standard to establish that due process was not followed.
35. The question of their Petition No.7 of 2010 not having been heard and determined
on merit before the promulgation of the New Constitution has clearly kept nagging
the Claimants at all material times. Notwithstanding the Claimants’ complaint on
the matter, we take cognizance of the fact that the IICDRC by majority decision
found, while dealing with interlocutory Application No.3 of 2010 for interim reliefs,
that there was no valid Petition. Whether that decision was right or wrong, the fact
of the matter is that it is a judicial decision.
36. The Claimants came to this Court, inter alia, under Article 30 of the Treaty. Sub-
Article (1) thereof provides:
“30(1) Subject to the provisions of Article 27 of this Treaty (relating to EACJ’s
jurisdiction) 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 grounds that such Act,
regulation, directive, decision or action is unlawful or is an infringement of the
provisions of this Treaty.”
37. Was the decision of the IICDRC complained of a regulation, directive or action of a
Partner State or an institution of the Community within the meaning of the Article
30(1) such as to empower this Court to inquire into or review the same?
38. In our respectful view, the matters which this Court can, in exercise of its original
jurisdiction, inquire into under Article 30(1) do not include judicial decisions. The
latter can only be subjected to requisite inquiry or review in exercise of appellate or
review jurisdiction. We are not clothed with that jurisdiction.
We, accordingly, answer the first limb of Issue No.1 in the affirmative and this answer
also disposes of the second limb.
Issue No2: Whether there was failure of resolution of Petition No.7 of 2010 by the
Interim Independent Constitutional Dispute Resolution Court which violated the
provisions of peaceful resolution of disputes.
39. As already recorded, on 24th August, 2010 Ariviza and Mondoh filed Application
No.3 of 2010, arising from Petition No.7 of 2010, seeking interim reliefs. On 26th
August, 2010 while dealing with Application No.3 of 2010, the IICDRC by majority
decision found that Petition No.7 of 2010 was not a valid Petition, thereby affectively
disposing of the Petition itself. In our settled view, the fact that there was a decision
on Petition No.7 of 2010 is sufficient evidence that the Petition was heard and
determined by the IICDRC. Whether the decision was right or wrong is immaterial.
We accordingly, answer Issue No.2 in the negative.
Issue No.3: Whether or not the publication of Gazette Notice No.10019 on 23rd
August, 2010 and the subsequent promulgation of the New Constitution of Kenya
on 27th August, 2010 was a breach of the Rule of Law and, therefore, a violation of
the Treaty.
40. This issue is against the publication/gazettment by the Interim Independent Electoral
224
Commission (IIEC) on 23rd August, 2010 of a Certificate giving final results of the
Referendum before the Claimants’ Petition No. 7 of 2010 challenging the conduct
and result of the Referendum had been heard and determined. The reason given for
the IIEC to publish the notice as aforesaid was that the Attorney General and IIEC
had not been served with the Petition by that date. It is common ground that the
Petition filed on 19th August, 2010 was served on the Attorney General and IIEC on
24th August, 2010.
41. The basic legal requirements relating to the questioned publication are found in
Sections 43 and 44 of the Review Act as amended by the Statute Law (Miscellaneous
Amendment) Act, No.6 of 2009 which provide as follows:
“43. (1) The Interim Independent Electoral Commission shall publish the result of
the Referendum in the Gazette within two days of the holding the referendum.
(2) If no petition is made under Section 44 challenging the conduct or result of
the referendum within the time limit for making such petitions, the result of the
referendum shall be final upon the expiry of that time.
(3) If a petition is made under section 44 challenging the conduct of the referendum
within the time limit for making petitions, the results of the referendum shall not be
final until all such petitions are finally disposed of.
(4) The Interim Independent Electoral Commission shall, consequent upon the
results of the referendum becoming final, by notice in the Gazette, confirm the
results as the final result of the referendum.
43A. The President shall by notice in the Gazette, promulgate the New Constitution
not later than fourteen days after the publication of the final result of the referendum.
(1) The conduct or result of the referendum may be challenged only by petition to
the Interim Independent Constitutional Dispute Resolution Court established by
Section 60A of the Constitution.
(2) A petitioner shall give notice of the petition to the Attorney General and the
Interim Independent Electoral
Commission within seven days after the petition is made and the Attorney General
shall publish a notice of each petition of which notice has been received, in the
Gazette within seven days of the expiry of the period prescribed in subsection(1).
(3) The petitioner shall within seven days after the petition is made deposit two
million shillings with the Court as security against costs.
(4) If the security is not given in accordance with subsection (3), the petition shall
be dismissed.”
42. The material placed before us in this Reference reveals that the challenge posed
before this Court relating to the conduct and result of the Referendum was subjected
to the judicial process in Kenya, notably vide IICDRC Constitutional Petition No.7
of 2010. The Claimants herein have taken issue with IICDRC’s action of disposing
of the petition at inter-locutory stage while dealing with Application No.3 of 2010
which was seeking interim reliefs pending the hearing of the Petition on merit. We
note from its Ruling of 26th August, 2010 that the IICDRC categorically stated that
it was well within the Attorney General’s and IIEC’s mandate to publish the final
results.
43. In essence what the instant Reference is asking this Court to do, in the exercise of its
225
original jurisdiction, is to inquire into and review the decision of the IICDRC not
to hear the Petition on merit. With respect, we do not consider it to be within this
Court’s competence to do that. If we did so, we would in effect be sitting on appeal
over the subject IICDRC’s decision. We do, respectfully, decline the invitation
to inquire into and review the correctness or otherwise of IICDRC’s decision on
Petition No.7 of 2010.
Accordingly, we answer Issue No.3 in the negative.
Issue No.4: Whether or not the parties are entitled to the remedies sought.
44. This issue, though not so clearly framed, is in effect asking whether the Claimants are
entitled to the remedies sought. It should be clear from our answers to Issue No.1,
Issue No.2 and Issue No.3 that we find the Claimants not entitled to the remedies
sought.
Accordingly, we answer Issue No.4 in the negative.
Having regard to the foregoing, we hereby dismiss the Reference.
Costs
45. This Court is aware that the successful party normally gets costs of the litigation
unless the Court in its discretion, which should be exercised judicially, directs
otherwise [see: Rule 111(1) of the Rules of this Court and Kiska Ltd – vs – De Angelis
(1969) EA.6].
46. We note that the Claimants are ordinary individuals who tussled over different
aspects of the same matter before the High Court of Kenya, before Kenya’s IICDRC
and before this Court. They clearly must have felt strongly that they had genuine
grievances requiring judicial adjudication even at regional level. The litigation before
this Court was not frivolous and it was of interest not just to the Claimants but to
other East Africans as well. In such litigation, one inevitably incurs expenses. We
feel that the Claimants have already paid adequately by pursuing this matter before
different courts including EACJ. We believe the Claimants undertook this litigation
in good faith and we are not inclined to penalize them with costs.
Consequently, we direct that the Parties shall bear their respective costs.
****
Plaxeda Rugumba And The Secretary General of the East African Community, The
Attorney General of the Republic of Rwanda
Mary Stella Arach-Amoko, DPJ, John Mkwawa, J, Isaac Lenaola,J
Computation of time -Jurisdiction - No exhaustion of local remedies required-Rule of

law- whether arbitrary arrest and detention contravened the EAC Treaty
Articles: 6(d),7(2), 29, 30(1), East African Community Treaty - Rule 24(1), East
African Court of Justice Rules of Procedure - Articles 90 to 100, Rwandan Code of
Criminal Procedure-African Charter on Human and Peoples’ Rights
The Applicant alleged that her brother Lieutenant Colonel Seveline Rugingana Ngabo
was unlawfully arrested and detained by the 2nd Respondent’s agents without any
formal charges and without informing his next of kin about his whereabouts. The
Applicant averred that: this was a breach of the fundamental principles of rule of law
and universally accepted standards of human rights stipulated in the EAC Treaty;
and that the 1st Respondent had failed to to fulfill his obligations under the Treaty
by not investigating the 1st Respondent’s non-compliance with Treaty provisions.
In response the 1st Respondent claimed inter alia that the Applicant did not exhaust
the local remedy of habeas corpus, the 2nd Respondent contended that the Reference
was time-barrred and that the court had no jurisdiction to hear human rights cases.
Held:
1. The detention complained of was continuous and it would be against the principles
known to the rule of law to dismiss the complaint on the basis of strict mathematical
computation of time.
2. Whereas the Applicant may have had a remedy in the Rwandan Justice System,
the Court would not abdicate its mandate under the Treaty to apply, interpret and
ensure compliance.
3. Prior to the filing of the Reference, the 1st Respondent had no notice of the alleged
complaint and thus cannot be condemned for inaction.
4. The jurisdiction of the Court to interpret any breach of the Treaty was not in vain,
neither was it cosmetic and the invocation of the provisions of the African Charter
on Human and Peoples Rights was not merely decorative of the Treaty but was
meant to bind Partner States.
5. The conduct of the 2nd Respondent with regard to the detention of the Subject
without trial and without the production of the Subject before a competent Court or
Tribunal for five months was in breach of Articles 6(d) and 7(2) of the Treaty.
Plaxeda Rugumba and another v AG Kenya
227
Cases cited:
Connelly v. DPP [1964] 2 All ER 401 at 442
E. Mwakisha and 74 Others v. Attorney General Kenya, EACJ Reference No. 2 of 2010
Independent Medical Unit v. Attorney General Kenya and 4 Others, EACJ Reference No
3 of 2010
Katabazi and 21 others v. Secretary General of the East African Community, A. G.
Uganda, EACJ Reference No. 1 of 2007
Judgment
Introduction
1. The Reference dated 8th November 2010 is premised on the provisions of Articles
6(d), 7(2) and 30(1) of the East African Community Treaty as well as Rule 24(1) of
the East African Court of Justice Rules of Procedure (hereinafter referred to as “the
Treaty” and “the Rules” respectively).
2. The Applicant, Plaxeda Rugumba (hereinafter referred to as “the Applicant”), claims
that she is the natural elder sister of one, Seveline Rugigana Ngabo, a Lieutenant
Colonel in the Rwanda Patriotic Front (RPF), the Defence Force of the Republic of
Rwanda (which is a member of the East African Community, hereinafter referred to
as the “EAC”). The Applicant alleges in paragraph 5 of the
Reference that:
“(a) One Seveline Rugigana Ngabo, a Lieutenant Colonel in the Rwanda Patriotic
Front (RPF), was arrested by the agents of [the] Rwanda Government on 20th
August, 2010;
(b)Lieutenant Colonel Ngabo’s next of kin including his wife and children were not
told why he had been arrested;
(c) Lieutenant Colonel Ngabo is believed to still be in detention in any place within
Rwanda (sic);
(d) The grounds of belief are that the family has not been informed that he is dead
nor has his body been seen anywhere;
(e) The next of kin of Lieutenant Colonel Ngabo have not been informed where
Lieutenant Colonel Ngabo is detained;
(f) Lieutenant Colonel Ngabo has not been visited by his family, doctor, nor a
member of the Red Cross and is held incommunicado;
(g) Lieutenant Colonel Ngabo has not been formally charged before any Court of
Law in Rwanda nor is it disclosed anywhere what offence he is alleged to have
committed;
(h) Lieutenant Colonel Ngabo’s wife is not in a position to file an Application
for habeas corpus to cause the release of her husband within Rwanda as the
Government is hostile to such [a] process and her attempts to follow up the
detention of her husband has led to her being harassed into hiding;
(i) The Applicant is the elder sister of the said Lieutenant Colonel Ngabo and has
capacity and locus to bring this Application to protect the fundamental Human
Rights of her brother.”
3. The Applicant now seeks the following declarations from this Court, that:
228
(a) The arrest and detention by the 2nd Respondent’s agents without trial of
Lieutenant Colonel Seveline Rugigana Ngabo is a breach of the fundamental
principles of the Community, to wit; Articles 6(d) and 7(2) which demand that
partner states shall be bound to govern their populace on principles the of good
governance and universally accepted standards of Human Rights.
(b) The failure by the 1st Respondent to investigate the failure of the partner state,
Rwanda, to fulfill obligations of the Treaty enunciated in Articles 6(d) and 7(2)
and submit its findings as required in Article 29(1) is wrongful.
(c) Any other relief as the Court may deem fit to grant.
(d) Costs of the Application.
Applicant’s Case
4. It is the case for the Applicant as appears in her Affidavit sworn on 5th October 2010
and in Submissions by her Counsel, Mr. Rwakafuuzi, that:
Firstly, the 1st Respondent acted in breach of Article 29 of the Treaty when he failed
to take the “necessary action” concerning the alleged breach by the Government of
the Republic of Rwanda with respect to the arrest and detention of Seveline Rugiga
Ngabo (hereinafter referred to as “the Subject”). Secondly, that the 2nd Respondent,
representing the Republic of Rwanda, was in breach of Articles 6(d) and 7(2) when
the Government of Rwanda detained the Subject, unlawfully.
5. In furtherance of this issue, it was the argument of Counsel for the Applicant that
the 2nd Respondent in fact admitted the breach when in his Amended Reply to the
Reference, he conceded that agents of the Government of Rwanda had unlawfully
detained the Subject from 20th August 2010 to 28th January 2011.
6. That since the African Charter on Human and Peoples Rights was specifically accepted
as one of the sources of the fundamental principles governing the achievement of the
objectives of the EAC, (in Article 6(d) of the Treaty), then it follows that the unlawful
detention of the Subject must be held to be in breach of the Treaty.
7. Thirdly, an issue arose as to whether this Court is clothed with the Jurisdiction to
determine the two issues raised above. The Applicant’s position in that regard is
that by dint of Article 30(1) of the (2) Treaty, legal and natural persons resident in
the Partner States are granted the right to refer an action or decision of any Partner
State, for the Court’s interpretation under Article 27 (1) of the Treaty and for it
to determine whether or not that act or decision infringes on any provision of the
Treaty.
8. It is further contended that the Applicant has invoked Article 6(d) of the Treaty
which enjoins a Partner State to govern its people in accordance with the principles
of good governance including strict adherence to the Principles of Democracy, Rule
of Law, including, the protection of human and peoples’ rights as enshrined in the
African Charter on Human and Peoples Rights. It is the Applicant’s argument that
she has placed sufficient evidence by way of Affidavits, that the Subject was arrested
and detained without being charged before a competent Court and he was therefore
not afforded the opportunity to appear and defend himself and those actions were
against the Rule of Law and clearly a breach of Articles 6(d) and 7(2) of the Treaty
and also of the Laws of Rwanda.
229
9. It is also contended that the court has the Jurisdiction to make a declaration under
Article 27(1) of the Treaty that the act of arresting and detaining the Subject was in
breach of the Treaty and the Government of Rwanda should bear culpability in that
regard.
10. 10. Fourthly, it was the Applicant’s further argument that it had no legal obligation
to exhaust all local remedies in Rwanda before filing the present Reference. That in
fact, the special Jurisdiction conferred on this Court to interpret the Treaty cannot
be assumed by any Local Court in a Partner State and in the instant case, the remedy
sought can only be granted by this Court and not any Local Court in Rwanda.
11. Fifthly, the Applicant also stated that the Reference was filed within time because
whereas Article 30(2) of the Treaty limits the time for filing proceedings to two (2)
months after the cause of action has risen, in the instant case, the Subject was arrested
on or about 20th August 2010 and while the reference was filed on 8th November
2010 the “detention whose legality is the subject of this reference continued up to
28th January 2011 when the Subject was put in preventive detention by an Order of
Court as provided by the Laws of Rwanda.” That therefore, by the time the Reference
was filed, the cause of action was still subsisting and Article 30(2) cannot apply to bar
the present proceedings.
12. For all the above reasons, the Applicant states that she is entitled to the reliefs sought
and the Court should exercise its discretionary Jurisdiction under Article 27(1) of
the Treaty and grant the declarations as set out elsewhere above.
1st Respondent’s Case

13. The 1st Respondent filed a Response to the Reference on 14th December 2010 and in
it, raised the following issues:
(i) That although he was not aware of the Subject’s arrest and detention as claimed,
upon the Reference being filed and served on him, “all necessary measures
[would] be undertaken to address the situation.”
(ii) That the Reference is misconceived, frivolous and vexatious because the Applicant
has failed to exhaust the local remedy of habeas corpus to seek the production of
the Subject and neither has she shown that the Republic of Rwanda has failed to
fulfill its obligations under the Treaty and therefore necessitating an investigation
by the 1st Respondent or even the filing of a Reference in that regard.
In Submissions, the Counsel for the 1st Respondent added that:
(iii) Upon learning of the Applicant’s complaint, the 1st Respondent initiated
correspondence with the 2nd Respondent and he was informed that the
Applicant’s allegations were being appropriately addressed. That therefore, the
1st Respondent had no further role to play in the matter and this Court should
not find that he has failed in his obligations under the Treaty, in any way.
(iv) The Court had no Jurisdiction to handle the complaint as the same was being
adjudicated by competent organs of the Republic of Rwanda and in any event,
the Applicant ought to exhaust all local remedies before approaching this Court.
14. Lastly, the 1st Respondent also contends that since the Reference was filed out of
time, it should be struck off and that being the case , then the Applicant is not entitled
to any remedy as against the 1st Respondent.
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2nd Respondent’s Case
15. The response by the 2nd Respondent is the one titled, “Amended Response to
Reference”, dated 16th June 2011 and filed on 21st June 2011. Together with
that Response is an Affidavit sworn on 16th June 2011 by one Lieutenant Jean de
Dieu Rutayisire, Chief Registrar, Military Court of Rwanda, as well as copies of
proceedings of the said Court conducted on 28th January 2011 and on subsequent
dates, all relating to the Subject herein.
Of relevance to the Reference are the following matters:
i. That the Subject was arrested for being “suspected [to have] committed crimes
against National Security (sic).” And that on 21st January 2011, the Military
Prosecution lodged its case for Preventive Detention and it was only on 28th
January 2011 that the Military High Court ruled that “the detention of Lieutenant
Colonel Ngabo from the date he arrested until the date his case was brought was
before the Court was irregular and contravened the provisions of Articles 90 to
100 of the Rwandan Code of Criminal Procedure.”
ii. That since that date, the Military High Court for reasons of gravity of the
alleged crimes committed by the Subject,has continued to extend the Preventive
Detention Order for regular periods and the Subject is detained in a known
Military Prison and exercises all his rights, including visitation by his family,
lawyers and friends.
Further, it is the 2nd Respondent’s case that:
(iii) The Reference was filed in breach of Article 30(2) of the Treaty and
it was time- barred.
(iv) The Court has no Jurisdiction to deal with Human Rights issues and has no
Jurisdiction to deal with issues that are pending before a lawful Court in Rwanda
and which Court is yet to issue a verdict on the said matter.
That in any event, the EACJ should only be considered as a Court of last resort
when National Courts are unwilling or unable to render justice to the people in
their jurisdictions,otherwise,it will attract millions of cases that would ,in normal
circumstance, be competently handled by Local Courts in Partner States.
(v) The Government of Rwanda has at all times acted by the principles of good
governance, including adherence to the principles of democracy,the rule of Law,
Social Justice and maintenance of accepted Standards of Human Rights and so
the Reference is without merit and should either be struck off or dismissed.
Issues for Determination

16. From the contested matters set out above and from the agreed issues as framed
during the Scheduling Conference, the following questions ought to be determined:
(a) Whether the East African Court of Justice’s (EACJ) First Instance Division has
Jurisdiction to entertain the Reference herein.
(b) Whether it was permissible to file the Application out of time.
(c) Whether the Applicant should have exhausted local remedies before filing the
Reference.
(d) Whether the 1st Respondent is in breach of the Treaty by his failure to investigate
the alleged breaches by the 2nd Respondent.
231
(e) Whether the 2nd Respondent’s arrest and detention of Lieutenant Colonel
Rugigana Ngabo was a violation of the Laws of the Republic of Rwanda.
(f) Whether the 2nd Respondent breached the East African Treaty in Articles 6(d)
and 7(2) when it detained Lieutenant Colonel Rugigana Ngabo unlawfully.
(g) Whether the Applicant is entitled to the reliefs sought.
(h) Who should bear the costs of the Reference?
17. Our opinion on the above issues is as follows:
(A) Whether the East African Court of Justice (EACJ) has jurisdiction to entertain
the Reference herein
18. It cannot be denied that the Applicant is a person who is resident in a Partner State as
defined by the Treaty. In her Reference, she stated that she is a Ugandan of Rwandan
extraction and a natural elder sister of the Subject.
She has added that her address is in Kampala, Uganda and no party has raised issues
with those facts. Article 30(1) of the Treaty provides as follows:
“Subject to the provisions of Article 27 of this Treaty, any person who is resident
regulation, directive, decision or action of a Partner State or an institution of the
Community on the grounds that such Act, regulation, directive, decision or action is
unlawful or is an infringement of the provisions of this Treaty.”
19. In terms of locus standi therefore, and from the facts pleaded, the Applicant is a fit
and proper person to file the Reference. The second limb of this question is whether
the act complained of, is one that clothes the EACJ’s First Instance Division with
Jurisdiction to determine the Applicant’s allegations against the Respondents. In
that regard Article 27 of the Treaty provides as follows:
“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
this end, the Partner States shall conclude a protocol to operationalise the extended
jurisdiction.”
20. We have heard the 2nd Respondent to argue that the issues raised by the Applicant
are matters of a Human Rights nature which are not part of the “initial”Jurisdiction
of the Court and therefore without am Protocol to operationalise any extended
Jurisdiction, the Court cannot purport to exercise jurisdiction which has specifically
been denied to it by the Treaty.
21. There is no debate that the extended jurisdiction as envisaged by Article 27(2) has
not been conferred on this Court and in Katabazi and 21 others vs. Secretary General
of the East African Community and A. G. Uganda, Reference No 1 of 2007, the
predecessor to this Court stated partly as follows;“It is very clear that Jurisdiction with
respect to Human Rights requires a determination of the Council and a conclusion
of a protocol to that effect. Both of those steps have not been taken. It follows,
therefore, that this Court may not adjudicate on disputes concerning violation of
Human Rights per se.”
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22. Having so said however, the Court went further to state as follows:
“… Article 6 sets out the fundamental principles of the Community which governs
the achievement of the objectives of the Community, of course as provided in Article
5(1). Of particular interest here is paragraph (d) which talks of the rule of Law and
the promotion and the protection of Human and Peoples Rights in accordance with
the provisions of the African Charter of Human and Peoples’ Rights.” Article 7
spells out the operational principles of the Community which govern the practical
achievement of the objectives of the Community in Sub- Article (1) and seals that
with the undertaking by the Partner States in no uncertain terms of Sub- Article
(2): The Partner States undertake to abide by the principles of good governance,
including adherence to the principles of democracy, the rule of law, social justice and
the maintenance of universally accepted standards of human rights. Finally, under
Article 8(1) (c) the Partner States undertake, among other things to:
Abstain from any measures likely to jeopardize the achievement of those objectives
or the implementation of the provisions of this Treaty.
While the Court will not assume Jurisdiction to adjudicate on human rights disputes,
it will not abdicate from exercising its jurisdiction of interpretation under Article
27(1) merely because the reference includes allegation of human rights violation.”
23. We respectfully adopt the above reasoning as was also adopted in Mwakisha and
74 Others vs. A.G. Kenya, Reference No.2 of 2010 and would wish to clarify that the
Applicant in the Reference is asking only one fundamental question, with more than
one facet to it; has the Republic of Rwanda breached the principles set out in Articles
6(d) and 7(2) of the Treaty? She therefore seeks the interpretation of that question
by this Court under Article 27(1) and we see no bar to our doing so. It would be
absurd and a complete dereliction of this Court’s Oath of Office to refuse to do so as
long as the two Articles are in the Treaty. There is no doubt that the use of the words,
“Other original, Appellate, Human Rights and other Jurisdiction …” is merely in
addition to, and not in derogation to, existing Jurisdiction to interpret matters set
out in Articles 6(d) and 7(2). That would necessarily include determining whether
any Partner State has “promoted” and “protected” human and peoples’ rights in
accordance with the provisions of the African Charter on Human and Peoples’
Rights and the Applicant is quite within the Treaty in seeking such interpretation
and the Court quite within its initial Jurisdiction in doing so and it will not be shy in
embracing that initial jurisdiction.
We should conclude this question by adding that “Human Rights” is defined in
Black’s Law Dictionary – Eighth Edition as: “the freedoms, immunities and benefits
that, according to modern values (esp. at an international level), all human beings
should be able to claim as a matter of right in the society in which they live”
24. When the Applicant seeks to know whether the Subject’s arrest and detention was a
breach of the Treaty, she is not asking the Court to interpret the enforcement of any
human right available to the subject,and that is why she withdrew her prayer for “an
order that the said Lieutenant colonel Seveline Rugigana Ngabo be released from
illegal detention”, because this court would obviously have no such jurisdiction. All
she is seeking are certain declarations within the mandate of the Court and we have
said why such Jurisdiction to make such declarations exists.
233
25. The objection to Jurisdiction as framed and argued by the Respondents is misguided
and is hereby dismissed.
(B) Whether it was permissible to file the application out of time
Article 30(2) of the Treaty provides as follows:
“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.”
26. The Applicant has made the point that because the detention of the Subject was
continuous, time could not have stopped running two (2) months after his arrest.
We have taken into account the objections by the 2nd Respondent and we note that
in the Amended Response and in the Affidavit of Lieutenant Rutayisire, not once
has any of them stated the exact date when the Subject was arrested and detained by
the agents of the Republic of Rwanda. The 2nd Respondent’s objection as to time is
premised on the candid statement of the Applicant that her brother was arrested on
20th August 2010. Should we then take it that time stopped running on 20th October
2010 and the Reference filed on 8th November 2011 was out of time?
This Court considered a similar matter in the case of Independent Medical Unit
vs. A.G. Kenya and 4 Others, Reference No.3 of 2010 and it rendered itself partly as
follows:“It was contended on behalf of the Respondents that the pleadings show that
the Complainant was aware of the complaint way back in 2008 and that, therefore, the
Reference is barred by limitation in that it was filed outside the 2 months limitation
period stipulated under Article 30(2) of the Treaty. Counsel for the Claimant
submitted that the Reference is not time barred in that, the matters complained of
are criminal in nature and concern the Rule of Law, good governance and justice
which do no thave any statutory limits. The case of Stanley Githunguri vs. Republic
(1986) KLR 1 and Republic vs. Gray Ex-parte Graham (1982) 3 All ER 653 were cited
in support of this Submission. Article 30(2) provides that:
the case may be.”
Upon careful consideration of this point of objection, it is our considered view, that
Kenya had failed to provide any remedy of the alleged violations.
We find that such action or omission of a Partner State cannot be limited by
mathematical computation of time.”
27. We adopt the same reasoning and agree with the Applicant that where issues in
contest are criminal in nature and the action complained of is continuous (such as
detention), it would be against the principles known to the rule of Law to dismiss the
complaint on the basis of strict mathematical computation of time. We must also
add that it is patently clear to us that the applicant only filed this Reference when she
realized that the Republic of Rwanda had failed or refused to provide any remedy for
the alleged violation and she cannot now be penalized on the basis of the inaction of
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a Partner State.
28. The Reference, in our humble view, was within time and we shall say something
about the period starting 20th August 2010 and ending on 28th January 2011, later
in this Judgment.
(C) Whether the applicant should have exhausted local remedies before filing the
Reference
29. We shall spend little time with this question because it is not in doubt that there is no
express provision barring this Court from determining any matter that is otherwise
properly before it, merely because the Applicant has not exhausted Local remedies.
It has been agreed by the parties that upon the Reference being filed, the Republic of
Rwanda produced the Subject before the Military High Court of that Country. Can
that action be said to be sufficient for this Court to tell the Applicant to go to Rwanda
and exhaust whatever remedies are available there? We must answer the question
in the negative.
30. We say because it has been admitted by the 2nd Respondent that from 20th August
2010 until 28th January 2011, the Subject was held in detention without lawful
authority. The Military High Court in Rwanda found that action to be a contravention
of Articles 90 – 100 of the Rwandan Code of Criminal
31. Procedure. Thereafter, the Subject was placed in Preventive Detention as is the Law
in Rwanda. This Court was already seized of the Reference now under consideration
when the Rwandan Military High Court made its order for Preventive Detention
and whereas the Applicant may well have a remedy in the Rwandan Justice System,
this Court cannot abdicate its mandate under the Treaty to apply, interpret and
ensure compliance therewith. The Rwandan Justice System has no jurisdiction to
do so neither does any other Judicial body in a Partner State have that jurisdiction.
The EACJ is the only Court mandated to determine whether the EAC Treaty has
been breached or violated and we have said elsewhere above that in the present case,
there is Jurisdiction to do so. Whether the Applicant’s complaints can be addressed
elsewhere is immaterial to the exercise of Jurisdiction under the Treaty and so the
2nd Respondent’s contention to the contrary is dismissed.
(D) Whether the 1st Respondent is in breach of the Treaty by his failure to investigate
the alleged breaches by the 2nd respondent.
32. In answer to the above issue, it has not been denied by the Applicant that prior
to the filing of the Reference, the 1st Respondent had no notice of the alleged
complaint. It would not therefore be reasonable to expect him to have taken any
necessary action before 8th November 2010 when the Reference was filed. We have
seen correspondence initiated by the 1st Respondent subsequent to that date and
since the matter relates to actions taken prior to that date, we are convinced that to
condemn the 1st Respondent for inaction in a matter he had no knowledge of, would
be unfair and we shall dismiss the Applicant’s complaint in that regard.
(E) Whether the 2nd Respondent’s arrest and detention of Lieutenant Colonel Ngabo
was in violation of the law of Rwanda.
33. It is admitted by the 2nd Respondent that for reasons said to be of “national” security,
the agents of the Republic of Rwanda arrested and detained the Subject at a known
facility within Rwanda.
235
Were those actions a violation of the Laws of Rwanda?

In his Affidavit, Lieutenant Rutayisire deponed partly as follows:
34. “That on 28th January 2011, the Military High Court ruled that the detention of
Lieutenant Colonel Ngabo from the date he was arrested until the date his case was
brought before the Court was irregular and contravened the provisions of Articles
90 to 100 of the Rwandan Code of Criminal Procedure.
However,basing on strong reasons to suspect him and the gravity of the crime
against him, taking into consideration the fact of preventing him from interfering
with the investigation and as insurance against potential evasion of justice, the
Military High Court ruled on his preventive detention, applying Article 89 of the
Rwandan Code of Criminal Procedure (as modified and complemented by Article 19
of the Law no 20/2006 of modified and complemented by Article 19 of 22/4/2006),
which provides that “when a person is detained unlawfully, . A judge or magistrate
then makes an order arresting or releasing the person on bail … That for the
purposes of investigations and the gravity of the charges against Lieutenant Colonel
Rugigana Ngabo, which require enough time and security precautions, the military
prosecution complied with Article 100 of the Rwandan Criminal procedures, which
provides that “An order authorizing for preventive detention remains in force for
30 days including the day on which it was delivered. After the expiry of that time, it
can be renewed for one month and shall continue in that manner.” The same Article
provides that the time cannot be extended after one year for felonies. The crime
against Lieutenant Colonel Rugigana Ngabo is qualified as a felony under Article 20
of Rwandan Criminal Code.”
35. Further to this clear admission that the detention of the Subject was unlawful for a
period of five (5)months, we have the unchallenged Submission by Counsel for the
Applicant the at:
“The Laws of Rwanda provide that a person arrested shall not be detained beyond
forty eight (48) hours before being taken to court, or released (sic). The Laws of
Rwanda further provide that detention beyond forty eight (48) hours can only be by
an Order of a competent Court.”
36. There is little more to say in answer to the question posed above except to state that
the continued detention of the Subject without trial in a competent Court was a
breach of the Laws of the Republic of Rwanda and we so declare.
37. As a corollary to the above, we must now turn to the single issue that concerns the
interpretation of Articles 6(d) and 7(2) of the Treaty. Although we have touched on
the issue in passing, elsewhere above, it is clear to us that the arrest of the Subject
on suspicion of having committed a crime known to the Laws of the Republic of
Rwanda may per se not attract the intervention of this Court. However,his detention
from 20th August 2010 to 28th January 2011 must do so. In making the intervention
in this case, as we shall shortly do, we are not questioning the Partner State’s right
to apprehend and prosecute criminal suspects. In fact, we recognize this as every
Partner State’s duty and obligation to its populace. What we respectfully reiterate
however, is that Partner States should apprehend and prosecute criminal suspects
in accordance with established laws and if they do not, then they violate the Treaty.
38. We say so because we are of the firm view that the principles set out in Article 6(d)
236
and 7(2) were not inscribed in vain. The Jurisdiction of this Court to interpret any
breach of those Articles was also not in vain,neither was it cosmetic. The invocation
of the provisions of the African Charter on Human and Peoples Rights was not
merely decorative of the Treaty but was meant to bind Partner States hence the
words that Partner States must bind themselves to the “adherence to the principles of
democracy,the rule of Law …as well as the recognition, promotion and protection of
Human and Peoples Rights in accordance with the provisions of the African Charter
on Human and Peoples Rights” (ACHPR).It is common knowledge that Article 6
of the Charter provides that a person shall not be deprived of his liberty except in
circumstances permissible by Law.
39. Where a person is deliberately deprived of his liberty for a period of five (5)
months by a Partner State and the Military High Court of the Partner State finds
the deprivation to be “irregular” and therefore unlawful, how can this Court in its
interpretive mandate find otherwise?
40. It has been suggested by the 2nd Respondent that once the Subject’s situation was
“regularized” military High Court’s order of preventive detention, then the matter
was settled. The fundamental question is; how can such an action validate what was
previously and patently arbitrary, unlawful and in breach of the principles set out in
Article 6(d) of the Treaty? How can it be said that a Partner State is adhering to the
principles of good governance and the rule of law when a citizen is arrested and held
incommunicado without any competent Court being seized of his matter? It matters
not, as claimed by the 2nd Respondent, that the subject was held in a known facility
and it matters not that his family, lawyers and friends may have had access to him.
Where is his liberty when his incarceration has not been ordered by any Court of
Law that is competent to order such incarceration?
41. These questions are not addressing any human rights issue per se but are addressing
adherence to adopted in Bennet vs. Horsefery Road Magistrate’s Court and another
where Lord Griffith stated as follows:
“If the Court is to have power to interfere with the prosecution in the present
circumstances it must be because the judiciary accepts a responsibility for the
maintenance of the rule of law that embraces a willingness to oversee executive action
and to refuse to countenance behavior that threatens either basic human rights or
the rule of law.” His Lordship went on to add that:
“It is to my mind unthinkable that in such circumstances the court should declare
itself to be powerless and stand idly by.”
He then went further to refer to the words of Lord Devlin in Connelly vs. DPP [1964]
2 All ER 401 at 442: where His Lordship said that: “The courts cannot contemplate
for a moment the transference to the executive of the responsibility for seeing that
the process of law is not abused.”
42. We wholly subscribe to the above position and even without the extended jurisdiction
in human rights issues, this Court cannot stand idly by and declare itself to be
impotent of the capacity to render itself forcefully where the rule of law is threatened
in its eyes and in the eyes of the Treaty.
In submissions, the 2nd Respondent contended partly as follows:
“As stated previously, the 2nd Respondent is of the humble opinion that if the
237
EACJ declares itself competent to deal with a case pending before national courts, it
would create very serious problems for itself in the execution of its mandate. The 2nd
Respondent is still concerned that this would create a very dangerous precedence
where any individual in the region of millions and millions would bring any human
right issue before this Honourable Court, including those pending before national
courts of Partner States especially those who are politically motivated (sic) …….”
Our view, with respect, differs considerably with that stated above by the 2nd
Respondent. We say so because the EACJ is one of the organs of the EAC established
by Article 9(1)(e) of the Treaty. Article 27 of the Treaty grants locus standi to “any
person who is resident in a Partner State” to bring for determination to the court,
but within the mandate and jurisdictional parameters created by the Treaty, any
matter regarding alleged breach of the Treaty. Whether the residents come in small
numbers or in millions,is not a matter for the court to be overly concerned with.
What should concern it is whether any Partner State has breached any provision
of the Treaty and whether a remedy is available to the resident/Applicant. It would
be expected that when the Court rules in favour of a particular resident/Applicant,
the effect would be to deter the Partner State/Respondent from repeating the breach
and thereby reduce the anticipated millions of Applicants with similar complaints of
breaches of the Treaty. In the event, the 2nd Respondent’s fear of an avalanche of
litigation in the EACJ is misplaced and is accordingly overruled.
43. We need say no more; the conduct of the 2nd Respondent with regard to the
detention of the Subject without trial and without at the very least, production of
the Subject before a competent Court or Tribunal for a period of five (5) months
was in breach of Articles 6(d) and 7(2) of the Treaty and we so declare. As he is
now before a competent authority in the Partner State, we decline to say anything of
the proceedings subsequent to 28th January 2011, save that by Rwandan law, to wit
Article 100 of the Rwandan code of Criminal Procedure, the Preventive Detention
Order cannot exceed one year and the 2nd Respondent must appreciate that fact,
noting that the initial order was made on 28th January, 2011 and must necessarily
come to an end on 28th January, 2012.
(F) Costs
44. We have shown above, that the actions of the 2nd Respondent in relation to the
Subject were arbitrary and unlawful and the Applicant is properly before this Court.
Rule 111 of the Rules of this court provides that “costs in any proceedings shall
follow the event unless the Court shall for good reasons otherwise order.” We have
found no good reason to order otherwise in this case, and so the 2nd Respondent
shall bear the costs of the Reference but payable to the Applicant only.
Conclusion
45. While thanking all Counsel appearing for their industry and courtesy extended to
the Court, the final orders to be made in this Reference are as follows:
(a) A declaration is hereby issued that the detention of the Subject, Lieutenant
Colonel Seveline Rugigana Ngabo by the agents of the Government of the
Republic of Rwanda from 20th August 2010 to 28th January 2011 was in breach
of the fundamental and operational principles of the East African Community as
238
enunciated in Articles 6(d) and 7(2) of the Treaty which demands that Partner
States shall be bound by principles of inter alia, good governance and the rule of
Law.
(b) The case against the 1st Respondent is dismissed with no order as to costs.
(c)The 2nd Respondent shall pay to the Applicant the costs of this Reference.
Orders accordingly.
* * **
Reference 9 No. of 2010
African Network for Animal Welfare (ANAW) And The Attorney General of the
United Republic of Tanzania
Johnston Busingye, Mary Stella Arach-Amoko, DPJ, John Mkwawa, J, Jean-Bosco Butasi
Isaac Lenaola, J
April 25, 2013
Discretion - Extension of time- Filing documents after close of pleadings- Service -

Witness statements- Whether the Respondent was obligated to file and serve witness
statements before the hearing.
Rules 4, 10,46(1), (3) and 53 of the East African Court of Justice Rules of Procedures,
2010
In its Reference, the Applicant claimed that the Respondent was about to upgrade
and tarmac, the Natta-Mugumu – Kleins Gate Loliondo Road across the northern
wilderness of the Serengeti National Park. It averred that this would have harmful
environmental and ecological effects, cause irreparable and irreversible damage to
the ecosystem of the Serengeti and the adjoining Masai Mara national park in Kenya
and that this violated the EAC Treaty and other international conventions on the
conservation of the environment and natural resources.
On 23rd January 2013, during the Scheduling Conference, the Applicant was granted
leave to file an expert’s Report, on or before 22nd March 2013. The report was lodged
two days after the due date and the Applicant’s Counsel sought leave to have the
Report admitted out of time.
Respondent’s Counsel opposed the admission of the Report out of time, stating that
the reasons given for delay coupled with a clear reading of Rule 46 of the Court’s
Rules of Procedure precluded any discretion in favour of the Applicant.
Held:
1. The expert’s Report was filed on a Monday after time had lapsed on the previous
Friday. It is normal in the conduct of the affairs of human beings that strict deadlines
may not be met, depending on prevailing circumstances that is why Rule 4 was
crafted. However, the reasons given for an extension of time must be sufficient and
the production of the documents in question must be necessary in the eyes of the
Court. A weekend’s delay is not inordinate and the Report is necessary and would
assist the Court in reaching a fair and just decision.
2. While there is no express obligation to file and serve witness statements before the
hearing of the Reference, in the current case, Counsel for the Respondent specifically
sought an order, during the Scheduling Conference, to prepare and serve those
statements. Thus upon service of the Report, the Respondent shall, file and serve
written statements for its three proposed witnesses within 14 days of today’s date.
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Ruling
1. On 23.1.2013, during the Scheduling Conference in this matter, the Applicant prayed
for, and was granted an order to file an expert’s Report ,on or before 22.3.2013.
2. The Report was only lodged in the Nairobi sub-registry of the Court on 25.3.2013
and today, the date set for hearing of the Reference, the Applicant’s Counsel has
indicated that the Report was lodged two day’s outside time because the expert had to
visit the area where the Mugumu-Tabora B- Klein’s Gate-Loliondo Road(the subject
of the Reference) is situated, prepared and submitted the report on 25.3.2013 and it
was thereafter lodged on the same day. That in fact since 22.3.2013 was a Friday and
25.3.2013 was a Monday ,then it was promptly lodged in the circumstances. He
now seeks leave to have the Report admitted out of time although he did not mention
any Rule pursuant to which he was making the application for leave aforesaid.
3. The Respondent’s Counsel strongly opposes any attempt at admitting the Report
out of time ,arguing that the reasons given for delay coupled with a clear reading of
Rule 46 of the Court’s Rules of Procedure would preclude any discretion in favour
of the Applicant.
4. During submissions, three other issues were raised viz:
i) Whether the Applicant was obligated to serve the expert’s Report upon filing it.
ii) Whether the Respondent was obligated to file and serve witness statements before
the hearing of the Reference.
iii) Whether the hearing of the Reference should be adjourned.
5. We have considered the submissions on all the issues above and our opinion is as
follows:
A concise and clear reading of Rules 4, 10 and 46(1) and (3) of the Court’s Rules of
Procedure would show that the discretion to extend time and/or grant leave to file a
document is discretionary. In the present instance, the expert’s Report was filed on
a Monday after time had lapsed on the previous Friday. The reasons given that the
expert had to visit the disputed road, and thereafter compile the report, are neither
outlandish nor unreasonable, contrary to the strong position taken by Counsel for
the Respondent. It is normal in the conduct of the affairs of human beings that
strict deadlines may not be met, depending on prevailing circumstances, and that is
why Rule 4 of the Rules of Procedure was crafted. However, the rider in both rules
4 and 46(1) and (3) is that the reasons given must be sufficient and in the case of
documents, such as the expert’s report in question, its production in the eyes of the
Court is necessary.
6. We are satisfied that both criteria outlined above have been met in the matter before
us as a weekend’s delay is not inordinate and certainly the Report is necessary and
would greatly assist the Court to reach a fair and just decision in the Reference.
7. Regarding service of the Report, the matter is premature because without it being
admitted, service is a non-issue and we shall at the end of this Ruling make the
necessary orders in that regard.
8. As to the Respondent’s obligation, or lack thereof, to file and serve witness statements
before the hearing of the Reference, while there is no express obligation imposed
on a party to do so, the record would bear us out that Counsel for the Respondent
African Network for Animal Welfare v AG United Republic of Tanzania
241
specifically sought an order, during the Scheduling Conference, to prepare and serve
those statements. Today, he has decided to waive his right to do so and whilst that
right still exists, the Court is not precluded from giving directions as to how each
case should be heard. This is a discretion granted to it under its inherent jurisdiction
to do justice without undue regard to technicalities under Rule 55(3)(d) of the Rules
of Procedure. The facts and circumstances of this case would necessitate that this
Court should invoke that jurisdiction.
9. In the event, and for the above reasons, invoking Rules 4, 10, 46(1) and (3) of the
Court’s Rules of Procedure, we shall order and direct as follows:
i) The expert’s Report lodged in the Nairobi sub-registry on 25.3.2013 by the
Applicant is admitted into the record and shall be deemed as filed within time.
ii) The Report shall be served forthwith upon the Respondent, by the Applicant and
in any event, within the next 7 days.
iii) The Respondent shall, within 14 days of today’s date, file and serve written
statements for its three (3) proposed witnesses .
iv) The hearing of the Reference shall be adjourned to a date to be given by notice to
the parties and as to costs, we deem it fit in the circumstances, to order that each
party should bear its own costs.
It is so ordered.
****
African Network for Animal Welfare (ANAW) And The Attorney General of the
United Republic of Tanzania
Jean-Bosco Butasi, PJ, Isaac Lenaola, DPJ, John Mkwawa, J.

June 20, 2014
Co-operation in environmental and natural resources management- Jurisdiction

-Limitation of time - Permanent injunction - Protection of the environment and
natural resources- Whether the Respondent intended to upgrade a trunk road in
the Serengeti National Park- whether the adjoining Parks would suffer irreversible
environmental and ecological effects - Whether the proposed upgrade infringed the
EAC Treaty.
Articles: 5 (3) (c), 8 (1) (c), 111 (2), 114 (1) (a), 151 (4) of the Treaty for the Establishment
of the East African Community.
The Applicant, a Charitable Pan-African animal welfare and community-centred

organization registered as a Non-Governmental Organisation in Kenya, alleged that
the Respondent was about to upgrade, tarmac, pave, realign, construct, create and/
or commission a trunk road called “Natta-Mugumu – Kleins Gate Loliondo Road”
(“the North Road”) across the northern wilderness of the Serengeti National Park.
It averred that this would have harmful environmental and ecological effects, cause
irreparable and irreversible damage to the delicate ecosystem of the Serengeti and
the adjoining Masai Mara national park in Kenya. The applicant alleges that this was
in violation of the EAC Treaty obligations and those made in other international
conventions on the conservation of the environment and natural resources.
The Respondent contented that the road was being upgraded and this was within the
mandate of the Government of the United Republic of Tanzania and was compliant
with environmental preservation and conservation rules and obligations under
international and regional treaties. The upgrade would stimulate the socio-economic
growth of over two million citizens and reduce transport costs between Mugumu
and Loliondo. Any negative environmental impacts would be mitigated with the
guidance of environmental experts. The Respondents also alleged that the Reference
was untenable in law as it sought to enforce provisions of the Treaty in chapter
Nineteen on co-operation on environment and natural resources which were yet to
be ratified by all Partner States.
Held:
1. While Article 151 (1) of the Treaty spelled out the objectives and scope of, and
institutional mechanisms for co-operation and integration, the failure to enact a
protocol did not oust the obligations placed on Partner States. Therefore, Chapter
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Nineteen of the Treaty was binding on Tanzania and the other Partner States with or
without a protocol in that regard.
2. It was evident that the Respondent intended to upgrade the Natta-Mugumu-Tabora
B – Kleins Gate-Loliondo Road from its current earth status to bitumen or gravel
standards. Whereas the Government of the Republic of Tanzania is lawfully entitled
to construct roads within its territory, where it fails in its obligations to conserve and
protect the environment within the meaning of Articles 5(3) (c), 8(1) (c), 111(1) and
114(1), then the Court could make declarations in that regard. If the road project as
initially conceptualized is implemented, it would be in violation of the Treaty as this
had the potential to cause irreversible negative impact on the Serengeti environment
and ecosystem and that of the neighboring Parks.
3. The court issued a permanent injunction restraining the Respondent from
operationalising its initial proposal or proposed action of constructing or maintaining
a road of bitumen standard across the Serengeti National Park subject to its right to
undertake other programmes or initiate policies in the future which would not have
a negative impact on the environment and ecosystem in the Serengeti National Park.
Cases cited:
Democratic Party v. Secretary General, East African Community and 4 Others, EACJ
Mukisa Biscuit Co Ltd v.West End Distributors Ltd [1969] EALR 696
Pimentel v. Executive Secretary, Supreme Court of Phillipine G. R. No. 158088 (2005)
Society for the Protection of Silent Valley v. Union of India 1980 Kerala HC.
Editorial Note: In Appeal No 3 of 2014, the Appellate Body held that an action must
constitute more than a mere abstract idea or hypothetical plan. Thus the trial court erred
in law by entertaining the Reference based on a proposal.
Judgment
Introduction
1. The Reference herein is dated 8th December 2010 and was filed in Court on 10th
December 2010.
2. The Applicant, African Network for Animal Welfare (hereinafter “ANAW”) has
described itself as a Charitable Pan-African animal welfare and community-centred
organization registered as a Non-Governmental Organisation in Kenya and was
registered as such on 21st June 2006. It is represented in these proceedings by Mr.
Saitabao Kanchory Mbalelo, an Advocate of the High Court of Kenya and whose
address for service was previously Odyssey Plaza, Ist Floor, Mukoma Road, South
B, P. O. Box 23746 – 00100, Nairobi, Kenya but now said to be c/o Kanchory & Co
Advocates, Upper Hill Gardens, Block C – 18, 3rd Ngong Avenue, PO. Box 23746 –
00100, Nairobi, Kenya.
3. The Respondent is the Attorney General of the United Republic of Tanzania sued as
such on behalf of the latter, a Partner State within the meaning of Articles 1 and 3 of
the Treaty for the Establishment of the East African Community (hereinafter, “the
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Treaty” and “the EAC”, respectively).
4. In the proceedings before us, he was represented by Mr. Gabriel Pascal Malata,
Principal State Attorney, Ms. Stella Machoke, Senior State Attorney and Mr.
Theophilo Alexander, Advocate. The address of service for the Respondent has
been given as Attorney General’s Chambers, Kivukoni Front, P.O. Box 9050, Dar es
Salaam, Tanzania.
5. The Reference was filed to challenge the proposed action by the Government of the
United Republic of Tanzania to construct and maintain a road known as the “Natta-
Mugumu – Tabora B-Kleins Gate – Loliondo Road”, across the Serengeti National
Park. The road is said to have been intended for the use of the general public with all
the attendant consequences to the environment, generally.
6. On 26th August 2011, the Respondent’s Preliminary Objection to the Reference
on the grounds of jurisdiction, limitation of time and form was overruled and his
appeal to the Appellate Division in EACJ Appeal No. 3 of 2011 was dismissed on
15th March 2012 and the matter remitted to this Division for substantive trial and
adjudication on the merits.
Applicant’s Case
7. The Applicant tendered both oral and Affidavit evidence and its counsel filed written
submissions on 4th October 2013 which he highlighted at the hearing on 10th
February 2014.
8. Its case is that before the Reference was filed, a 53 km earth road existed between
Tabora B Gate and Kleins Gate within Serengeti National Park and only 5 km of that
road was paved with gravel or murram.
9. The road was mostly used by tourists and Tanzania National Parks Authority
(TANAPA) officials and any other person who wanted to do so had to obtain special
authorization from Serengeti National Park’s Management to use it.
10. In his Affidavit in support of the Reference, sworn on 8th December 2010, Mr.
Josephat Ngonyo Kisui, the Executive Director of ANAW stated at paragraph 4
thereof, that before filing the Reference, ANAW had received information that the
Government of the United Republic of Tanzania was about to upgrade, tarmac, pave,
realign, construct, create and/or commission a trunk road called “Natta-Mugumu –
Kleins Gate Loliondo Road” ( hereinafter, “the road” otherwise referred to as “the
North Road” or “the Superhighway”) across the northern wilderness of the Serengeti
National Park (hereinafter “the Serengeti”).
11. It is now the Applicant’s submission that the said action would have deleterious
environmental and ecological effects and is likely to cause irreparable and irreversible
damage to the delicate ecosystem of the Serengeti and adjoining national parks such
as the Masai Mara in Kenya. These would include, it is urged:
i) disruption in animal migration;
ii) driving and scaring away wildlife from the game controlled areas;
iii) fragmentation of animal habitats and weakening or disappearance ; of an entire
generation of a given animal population disruption of the wildlife corridor;
iv) loss of scenic and visual quality;
v) increased and disruptive vehicular traffic;
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vi) enhanced and disruptive human activity;

vii) increased wildlife mortality due to road kill from speeding vehicles ;
viii) deterioration of air quality;
ix) surface water and soil pollution;
x) increased poaching activities.
12. In support of its stated position, the Applicant filed an environmental and impact
assessment, feasibility and preliminary design for the road, which is said to be 239
kms in length, prepared by the Tanzania Roads Agency (TANROADS). In that
report, all the above adverse effects are mentioned as negative impacts but they are
said to be capable of mitigation, a position not shared by the Applicant.
13. It is the Applicant’s further case that :
The actions of the Respondent are a violation of Article 114 (1) (a) of the Treaty
which enjoins all Partner States to conserve, protect and manage the environment
and natural resources and Articles 5 (3) ( c), 8 (1) (c) and 111 (2) of the Treaty which
obligate Partner States to co-operate in the management and utilization of natural
resources within the Community and to abstain from any measures that would
jeopardize the attainment of the objectives of the Treaty in that regard.
14. It is also the Applicant’s position that the United Republic of Tanzania’s actions
are a violation of its obligations in respect of Serengeti which has been declared a
“World Heritage Property” of “outstanding Universal value” according to the United
Nations Educational, Scientific and Cultural Organization (hereinafter “UNESCO”)
and therefore its protection and conservation is a matter of international concern.
That UNESCO for that reason, in its 34th Session held in Brasilia, Brazil, between
25th July 2010 and 3rd August 2010, expressed its concern about the proposed threat
to the environmental conservation of the Serengeti by the upgrading of the road as
was the intention of the Government of the United Republic of Tanzania.
15. In addition, that all the above actions are unlawful and in conflict with the
United Republic of Tanzania’s obligations under the African Convention on the
Conservation of Nature and Natural Resources, 2003; the Rio Declaration, the
Stockholm Declaration and the United Nations Convention on Biodiversity, all of
which create obligations on States with regard to environmental management and
conservation.
16. In support of its case, the Applicant called an expert witness, Mr. John Mabala
Kuloba, a registered Environmental Impact Assessment Expert working with M/S
EarthCare Services Limited of Nairobi, Kenya. His report is dated 25th March 2013
and his conclusion upon visiting the Serengeti and having used the road, was that
the proposed upgrading of the road and its opening up to use by the general public
would create more negative impacts than the positive and that an alternative route
should be created. He reached that conclusion from his findings that the following
negative impacts would be occasioned should the road be built as proposed:
i) impact on migratory species such as zebras and wildbeeste;
ii) impacts on the Serengeti ecosystem;
iii) impact on animal behavior;
iv) impact on the country’s image;
v) increased wildlife poaching;
246
vi) air quality and noise will increase in an environment where ambient noise levels
have been low;
vii) Construction of camps will have an impact because of generation of waste,
sewage disposal etc;
viii) impact on soils;
ix) generation of solid waste;
x) impact because of burrow pits and quarry sites;
xi) impact because of blasting and rock excavation;
xii) road safety and increased accidents;
xiii) impact on flora and fauna (ecosystem);
xiv) declines in scenic quality;
xv) Conflict in management of the Serengeti between TANAPA and TANROADS,
acronyms for the Tanzania National Parks and Tanzania Roads, both Government
agencies.
17. It is for all the above reasons that the Applicant now seeks the following orders;
(i) A declaration that the action to construct a road across the Serengeti National
Park is unlawful and infringes the provisions of the East African Community
Treaty specified ;
(ii) A permanent injunction restraining the Respondent from undertaking the action
complained of;
(iii) A permanent injunction restraining the Respondent from maintaining any road
or highway across any part of the Serengeti National Park ;
(iv) The Respondent be permanently restrained from gazetting any part of the
Serengeti National Park for the purpose of upgrading, tarmacking, paving,
realigning, constructing, creating or commissioning the Nata-Mugumu-Tabora
B-Kleins Gate-Loliondo Road;
(v) The Respondent be permanently restrained from removing or relieving herself
from the UNESCO obligations in respect of the Serengeti National Park on the
object of upgrading, tarmacking, paving, realigning, constructing, creating or
commissioning the said road otherwise for that purpose upgrading, tarmacking,
paving, re-aligning, constructing, creating or commissioning or maintaining a
trunk road or highway across the Serengeti National Park.
(vi) Costs.
18. We must at this point state that when highlighting his written submissions, Mr.
Kanchorry abandoned prayers (ii) and (iv) and so only prayers (i), (iii), (v) and (vi)
will be the subject of determination in this Judgment.
Respondent’s Case
19. The Respondent filed a Reply to Reference on 24th May 2012 and in it, the point
made is that the road has been in existence and in use and has had no negative impact
on the Serengeti ecosystem and is not the first of its kind in national parks. That a
reputable consultancy firm was hired by the Government of the Republic of Tanzania
to give a guiding report on how to overcome any negative impacts that its existence
may cause and that the said consultant’s recommendations when implemented,
would reduce those negative impacts and enhance the safety of animals.
247
20. The Consultant’s report is attached to the Reply to the Reference and its name and
address are given as M/S Inter-consult Ltd, Inter House, New Bagamoyo Road, P. O.
Box 423, Dar es Salaam, Tanzania.
21. 21. It is the Respondent’s further case that the road is merely being upgraded and
that action is being taken within the mandate of the Government of the United
Republic of Tanzania. That in doing so, the said Government intends to abide by
its laws and rules on environmental preservation and conservation as well as its
obligations to all international and regional treaties on the subject, including the
Treaty for the Establishment of the EAC.
22. In addition, that as a sovereign State, the Government has decided to upgrade the
road in order to stimulate the socio-economic growth of over two million of its
citizens and reduce the prevailing costs of transport between Mugumu and Loliondo
Centres and in doing so has mitigated all negative environmental impacts.
23. 23. In the report by M/S Inter-Consult Ltd signed by its Acting Chief Executive, Mr.
P.A.L. Mfugale, the conclusion reached is that “considering the measures that are
being put in place to ensure that possible adverse impacts on the Serengeti National
Park will be adequately addressed, it is proposed that the Government should
proceed with the implementation of the Natta-Mugumu-Loliondo road project.”
24. In that report, the Consultant also states that “the project will entail upgrading of
approximately 179 kms of the existing earth/gravel road from Natta-Mugumu-
Loliondo to bitumen standard.’’
25. The Respondent further tendered oral evidence in support of its position and called
three witnesses, Ms. Zafarani Madayi, the Head of Safety and Environment Unit in
the Directorate of Planning within TANROADS and Dr. James Wakibara, Principal
Economist with TANAPA as well as Mr. William Simon Mwakilema, Chief Warden,
TANAPA.
26. In her evidence, Ms. Madayi stated that whereas the report by M/S Inter-consult
Ltd gave the intended road project a clean bill of health, environmentally, another
consultant, M/S International Consultants and Technocrats PVT Ltd (India) in
association with M/S Appex Ltd (Tanzania) Ltd were hired in 2009 by TANROADS
to undertake, inter alia, a detailed engineering design and a comprehensive
environmental impact assessment study for the said road project to be submitted to
stakeholders including NGOs. That the said designs and study are yet to be completed
and have therefore not been subjected to stakeholder discussions nor have they been
submitted to the relevant Ministry for review and/or implementation.
27. Dr. Wakibara on his part stated that he is greatly involved in UNESCO’s work and
has submitted reports to it on the road project and since the Serengeti is a World
Heritage site and that in “Decision 35 COM 7A.18, UNESCO commended Tanzania
for its intention to maintain the 53 km stretch of the project traversing Serengeti
National Park to gravel standard and to reserve it mainly for the Park’s tourism and
administrative purposes”.
28. In his evidence, Mr. Mwakilema stated that the part of the road passing the Serengeti
is 53 kms and is used mainly for tourism and administrative purposes and the
intention of the Government is to upgrade it to gravel status only.
29. For the above reasons, the Respondent has urged the Court to dismiss the Reference
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and in addition, Mr. Malata filed a Notice of Preliminary Objection on 2nd May
2013 and it reads as follows:
“TAKE NOTICE THAT, on the first hearing date the humble Respondent shall raise
a preliminary objection based on points of law to the effect that:
i. The Reference before this Honourable Court is bad and untenable in law as the
same seeks to enforce a part of the East African Treaty which is yet to be ratified
by all Partner States thus unenforceable in law;
ii. The Applicant has no locus stand to institute this Reference against the Respondent
for the purported violation of International Conventions and Declarations on
Environment and Natural Resources ;
iii. The Reference before this Honourable Court in particular on the violation of
Articles of International Conventions and Declarations on Environmental and
Natural Resources is untenable for being placed and enforced before the wrong
forum.”
Scheduling Conference
30. At the Scheduling Conference held on 21st January,2013 the following points of
disagreement were recorded as were the agreed issues for determination:
Points of disagreement
(i) The road as proposed does not exist. It is being constructed, realigned, and
upgraded (Applicant);
(ii) The road exists. It is just being upgraded and realigned where necessary
(Respondent).
Agreed Issues for determination
(i) Whether the Respondent intends to upgrade, tarmac, pave, realign, construct,
create and/or commission a trunk road officially known as the Natta-Mugumu-
Tabora B-Kleins Gate-Loliondo Road also known as the North Road or Serengeti
Super Highway across the northern wilderness of the world famous Serengeti
National Park;
(ii) Whether the disputed road exists and is in use;
(iii) If so, whether the proposed action infringes the provisions of the EAC Treaty
specified therein as well as the international instruments referred to;
(iv) Whether the Applicant is entitled to the prayers sought.
Determination
Preliminary objection
31. In determining the issues in contest within the Reference herein, we deem it
appropriate and prudent to first dispose of the Preliminary Objections raised by the
Respondent. We have elsewhere above indicated that the Respondent had initially
raised preliminary objections on grounds inter alia of jurisdiction and limitation
of time which objections were overruled both by this Division and the Appellate
Division of the Court. It would have been expected that a diligent litigant would
have filed all preliminary objections to the Reference at the time of filing its pleadings
as is the expectation of Rule 41 of the Court’s Rules instead of doing so piecemeal,
as the Respondent has done. Nevertheless and in order to do substantive justice,
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we shall proceed to address the same with a reminder of the words of Sir Charles
Newbold in Mukisa Biscuit Co Ltd vs West End Distributors Ltd [1969] EALR 696
where he stated thus:
“The improper raising of points by way of preliminary objection does nothing but
unnecessarily increases costs and, on occasion, confuse the issues. This improper
practice must stop.”
32. With that background, the first issue raised by the Respondent is that the Reference
is bad and untenable in law as it seeks to enforce a part of the Treaty which is yet to
be ratified by all Partner States thus unenforceable in law.
33. At the hearing, Mr. Malata , with respect, was unclear on this point but in his written
submissions, we deduced his argument to be the following:
‘That because some of the Partner States, specifically Tanzania, are yet to ratify a
Protocol dated 2nd April 2006 to operationalise Chapter Nineteen of the Treaty, then
all the provisions of Articles 111 – 114 of the Treaty are also yet to be ratified and
are thus unenforceable in law. Further, that because there are no modalities and/or
mechanisms to deal with issues relating to the environment and natural resources,
then the Applicant’s case is misguided and cannot stand’.
34. In response, Mr. Kanchory argued that there is no requirement that until a protocol
is enacted, certain parts of the Treaty remain either unratified or become operational
only when a protocol is enacted.
35. On this point, and with tremendous respect to Mr. Malata, while he cited no
authority to support his contentions, we are clear in our minds that he has completely
misunderstood the Treaty on this issue. We say so, because Article 152 thereof
provides as follows:
“This Treaty shall enter into force upon ratification and deposit of instruments of
ratification with the Secretary-General by all Partner States.”
Article 153 (1) then provides as follows:
“This Treaty and all instruments of ratification and deposit of instruments shall be
deposited with the Secretary General who shall transmit certified true copies thereof
to all the Partner States.”
36. The Treaty was signed on 30th November 1996 and there is absolutely no evidence
before us that the United Republic of Tanzania or any other Partner State never
ratified it or ratified it with exceptions. In fact, from records held by the Secretary
General of the Community and which are available for perusal, the United Republic
of Tanzania ratified the Treaty on 28th June 2000 and deposited her Instruments of
Ratification on 30th June 2000.
37. While therefore, we agree that signature and ratification are two different and
distinct steps in the treaty – making process and that ratification is the final consent
by a Partner State to be bound by the provisions of a treaty, there is no evidence
before us that Tanzania has not ratified any part of the Treaty neither has it raised
any reservations to it – See Pimentel Vs Executive Secretary G. R. No. 158088 (2005)
per the Supreme Court of Phillipines on that issue.
38. Our finding above is also in line with Article 11 of the Vienna Convention which
provides that “the consent of a State to be bound by a treaty may be expressed
by signature, exchange of instruments constituting a treaty, ratification, acceptance,
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approval or accession or by other means if so agreed”.
39. The United Republic of Tanzania having signed and ratified the Treaty is clearly
bound by each provision therein and it is very surprising to hear its Chief Legal
Advisor submit to the contrary.
40. More fundamentally, and in answer to what was really the gist Mr. Malata’s objection,
whereas it is true that a protocol is expected to be concluded for each area of co-
operation including on the environment and natural resources, non-conclusion of
a protocol does not oust obligations placed on a Partner State by the Treaty itself.
Article 151 with regard to protocols states as follows:
“(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 the institutional
mechanism for co-operation and integration.”
(2) ….
(3) Each protocol shall be subject to signature and ratification by the parties thereto.”
41. In the context of the present Reference ,Chapter Nineteen of the Treaty is titled “Co-
operation in Environment and Natural Resources Management”, and in that regard,
there is general agreement that a protocol has been concluded to operationalise these
areas of co-operation between Partner States in the EAC and at the 26th Council of
Ministers meeting held between 19th – 26th November 2012, the United Republic
of Tanzania was directed to ratify that Protocol and deposit the instruments of
ratification with the Secretary General by 15th December 2012. It is unclear whether
it did so but, does that fact alone render all the provisions of Chapter Nineteen
inoperable until the Protocol is ratified by all Partner States?
42. Mr. Malata gave us no authority to support his arguments in that regard, neither
have we found any such authority. We understand Article 151 (4) of the Treaty to
be saying that “the Annexes and Protocols to [the] Treaty shall form an integral part
of the Treaty” and by its very nature, a protocol under Article 151 (1) of the Treaty
spells out the objectives and scope of, and institutional mechanisms for co-operation
and integration but failure to enact a protocol does not oust the obligations placed
on a Partner State by clear and unambiguous provisions in the body of the Treaty.
We make this categorical point because Chapter Nineteen is as binding on Tanzania
as to other Partner States with or without a protocol in that regard.
It is our finding therefore that for the above reasons the first objection must fail and
is accordingly overruled.
43. The second and third limbs of the preliminary objection are inter-related and shall
be determined as one for reasons that both are premised on the argument that the
Applicant has no locus standi to institute a reference premised on alleged violations
of International Conventions and Declarations on the environment and natural
resources and consequently the Applicant is in the wrong forum.
44. The objection speaks for itself but as can be seen above, the Applicant has alleged
violations of the provisions of the African Convention on Conservation of Nature
and Natural Resources, 2003, the Rio Declaration, the Stockholm Declaration
and the United Nations Convention on Biodiversity. In that regard, Mr. Malata
submitted that the Applicant has no locus standi to enforce those Declarations and
Conventions and more specifically, enforcement of their provisions cannot be done
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before this Court.

45. Mr. Kanchory’s answer to the above arguments, was that Articles 27 and 30 of the
Treaty when read together, would show that whereas the principal mandate of this
Court is to determine whether any Act, regulation, directive, decision or action of a
Partner State is unlawful and an infringement of the Treaty, the choice of the word
“unlawful” would extend to contravention of any law binding on a Partner State
including International Conventions and Declarations.
46. This Court was recently confronted with a similar question in the case of Democratic
Party vs Secretary General, East African Community and 4 Others, EACJ Reference
Non. 2 of 2012. In that case, the Applicant had sought orders inter alia that a
declaration ought to be made that failure by some of the Partner States to accept the
competence of the African Court in line with Articles 5 (3) and 34 (6) of the Protocol
to the African Charter on Human and People’s Rights and all other International
Human Rights Conventions, is an infringement of Articles 5, 6, 7 (c ), 126 and 130
of the Treaty as well as Articles 1, 2, 7, 13, 26, 62 and 66 of the African Charter on
Human and People’s Rights and the Vienna Convention on the Law of Treaties,
1969.
47. In dismissing that Reference, this Court stated partly as follows:
“But that is not the end of the matter because we heard the Applicant to be saying
that failure to deposit the declarations aforesaid is a violation of Articles 6(d), 7 (2),
126 and 130 of the Treaty. Article 126 provides for the scope of co-operation in
legal and judicial affairs while Article 130 provides for relations with other regional,
international organizations and development partners. Article 130 (2) specifically
states that:
“2. The Partner States reiterate their desire for a wider unity of Africa and regard
the Community as a step towards the achievement of the objectives of the Treaty
Establishing the African Economic Community.”
Article 130 (1) also provides that:
“1. The Partner States shall honour their commitments in respect of other
multinational and international organizations of which they are members.”
48. Reading the above Articles together, it is obvious to us that where a Partner State
“fails to honour commitments” made to other international organizations, with
appropriate facts placed before the Court, a decision to ensure compliance thereof
may be made in favour of a party that fits the description in Article 130 (4)and which
has a genuine complaint in that regard. In fact, the Organisation of African Unity
(now the African Union) , the United Nations and its agencies and other international
organizations, bilateral and multi-lateral development partners interested in the
objectives of the Community are specifically named in that regard and Partner States
are implored to “accord special importance to co-operation with those agencies” and
we have no doubt that in appropriate circumstances, a case may be made if a Partner
States acted to the contrary.
49. In stating the above, the only rider is that this Court cannot purport to operate
outside the framework of the Treaty and usurp the powers of other organs created for
the enforcement of obligations created by other instruments including the African
Charter and Protocol.”
252
50. We reiterate the above holding and in applying it to the instant Reference, the
gravamen of the Applicant’s case is not alleged violations of the cited International
Declarations and Conventions per se, but infringement of Chapter Nineteen of the
Treaty, a matter well within the mandate of this Court and the Applicant has locus
standi under Article 30(1) of the Treaty to bring proceedings in that regard. By our
Ruling of 29th August 2011, we determined the issue of jurisdiction of this Court
and the Appellate Division upheld our reasoning and we see no reason to revisit
those issues.
Without saying more, the second and third limbs of the objection must both fail.
51. Having disposed of the preliminary objections by the Respondent, we shall here
below determine each of the issues that were framed as points of disagreement
between the Parties.
Issue No. 1 - Whether the Respondent intends to upgrade, tarmac, pave, realign,
create and/or commission a trunk road officially known as the Natta-Mugumu-
Tabora B-Kleins Gate -Loliondo Road also known as the North Road or Serengeti
Super Highway across the northern wilderness of the world famous Serengeti.
52. Looking at the above issue and based on the evidence submitted by both Parties, we
consider it necessary to address the same together with issue No. 2 which is worded
thus;
Issue No. 2 – Whether the disputed road exists and is in use
52. In that regard, two positions were placed before us; the first is by the Applicant
which has alleged, through the evidence of Mr. Kuloba, that there is indeed a road
traversing the Serengeti and in his own words (page 3 of his report):
“The road cuts across the park without particularly serving any population until the
exit; there is only one tourist lodge located off the road. Currently, Klein’s gate is an
entry gate while Tabora B is not used as an exit gate, but rather for administration
purposes. In its current form for the 53 kms, the road starts off at Klein’s gate through
a distance of about 3 km as gravel with a single culvert on that stretch, then for the
rest of the distance of about 48 kms [it] is purely an access trail made and used by
four wheel drive vehicles; the distance of about 2 km as you approach Tabora B is
minimally gravel. The road is currently used for tourism and administration purposes
only but the user will change to public and commercial once the construction is
undertaken. In addition, the road is currently managed by TANAPA but when its
constructed it will be managed by TANROADS.”
53. The second position was that of the Respondent who relied on the evidence
contained in the report prepared by M/S Inter-consult Ltd where at page 1 thereof,
the following statement is found:
“The project will entail upgrading of approximately 179 km of the existing gravel/
earth road from Natta-Mugumu-Loliondo to bitumenstandard.”
54. Further, under a sub-heading titled, “Issue of the Road Passing in the Serengeti
National Park”, it is stated thus:
“A section of the Natta-Mugumu-Loliondo road from Tabora B – Klein’s Gate for
54 kms is proposed to pass through the Serengeti National Park. The proposal to
pass this road section in the Serengeti National Park has caused a number of protests
from a number of environment based groups on the grounds that it will have harmful
253
effects to the wild animals in the Serengeti…”

55. Further, in his evidence, Mr. Makwilema stated as follows:
“The section of 53 kms that is intended to be upgraded by the Government to gravel
status will mainly cater for administrative and tourism activities for the Park. For
tourism, the road will be used by tourists going to more than five permanent tented
camps situated along the road including Sayari, Kurya Hills, Bush Top, Lamai, Mara
River Tented Camps. The road is also intended to service tourists going to more
than twenty special camp sites, especially during the wildebeest migration period.
There is also one permanent tented camp near Kleins Gate (known as Kleins Tented
Camp). There is no lodge at the moment, either at the entry gate or at the Tabora B
gate or within the Park along the 53 kms section.”
56. Without belabouring the point and looking at Issues Nos. 1 and 2 again, there is little
difference in the evidence presented by both the Applicant and Respondent because,
save for the contradictions in the Respondent’s case whether the whole stretch of 179
kms was to be upgraded to bitumen or gravel standards, one fact is obvious; namely
that, the Respondent intends to upgrade the Natt-Mugumu-Tabora B – Kleins Gate-
Loliondo Road from its current earth status. There is no evidence that it intends to
re-align it but certainly upgrading involves construction and commissioning thereof.
57. The answer to both issues in the totality of all evidence placed before us can only
therefore be in the affirmative.
Issue No. 3 – Whether the proposed action infringes the provisions of the EAC
Treaty and International Instruments
58. We have elsewhere above set out the respective arguments by the parties on this issue
and we also note that while prayer (i) in the Reference uses the word ‘action’, both
parties at the Scheduling Conference used the words ‘proposed action’ as regards the
road project. We see no reason to worry about the semantics because the issue before
us is the decision to build a road across the Serengeti and we have previously ruled
that we have jurisdiction to determine that issue under Article 30 of the Treaty. But
for the sake of clarity, it was argued by the Applicant that the Respondent’s decision
and action aforesaid were in violation of Articles 5(3)(c), 8(1) ( c) and 111 (2) of the
Treaty. These Articles provide as follows:
Article 5(3) (c);
“3. For purposes set out in paragraph 1 of this Article, and as subsequently provided
in particular provisions of this Treaty, the Community shall ensure:
a) ………….
b) ………….
c) the promotion of sustainable utilization of the natural resources of the Partner
States and the taking of measures that would effectively protect the natural
environment of the Partner States.”
Article 8 (1) (c);
“1. The Partner States shall:
(a) …
(b) …
(c) co-ordinate through the institution of the Community, their economic and other
policies to the extent necessary to achieve the objectives of the Community.”
254
Article 111(2);
“2. Action by the Community relating to the environment shall have the following
objectives:
a) To preserve, protect and enhance the quality of the environment;
b) …
c) …
d) …”
59. To put matters into proper perspective, both parties agree that construction of the
road would have negative impacts on the Serengeti environment and ecosystem. In
addition, both produced documents sharing the concerns expressed by UNESCO
as to the project. For example, in its Report of the Decisions Adopted by the
World Heritage Committee of UNESCO at its 34th Session in Brasilia, 2010 the
Committee stated in Decision 35 COM 7B.5 that, it: “expresses its utmost concern
about the proposed North Road which will dissect the northern wilderness area of
the Serengeti over 53 kms, [and] considers that this proposed alignment could result
in Irreversible Damage to the property’s outstanding Universal value and therefore
urges the State Party to submit an Environmental Impact Assessment to the World
Heritage Centre before a decision to implement the project is taken.”
60. The same Committee in Decision 36 COM 7B.6 stated as follows, under the heading
“Serengeti National Park (United Republic of Tanzania) (N156);”
“The World Heritage Committee,
i. Having examined Document WHC – 12/36.COM/7B;
ii. Recalling Decision 35 COM 7B.7, adopted at its 35th Session (UNESCO, 2011);
iii. Welcomes the substantial efforts made by the State Party to implement the
recommendations of the 2010 mission as requested by the World Heritage
Committee at its 35th Session, and encourages the State Party to continue its
efforts to fully implement them;
iv. Notes the commitment of the State Party to solicit funding for a Strategic
Environment and Social Assessment (SEA) for the northern Tanzanian road
and calls on donors to provide funding for this study as well as the southern
alignment, which will avoid Serengeti National Park;
v. Also welcomes the announcement by the State Party that the planned railway
linking the coast via Musoma to Kampala will not traverse the property but will
go south of it.
vi. ….
vii. ….
viii. ….”
61. From the foregoing and from the evidence on record, there is no doubt that the
United Republic of Tanzania had initially intended to construct a bitumen road from
Natta through Mugumu to Tabora B Gate at Serengeti and 53 kms of it would have
had to go through the Park to Kleins Gate and onwards to Loliondo. The intention,
according to the report by Inter-Consult Ltd, was to “provide an all-weather road
linking the district town of Mugumu and Loliondo to the regional capitals of
Musoma and Arusha and thereby stimulating socio-economic growth of 2.3 million
people living in the districts of Serengeti and Ngorongoro whose respective capitals
255
of Mugumu and Loliondo will be served by bituminized road”.

62. The report is dated 17th January 2011 and took into account the protestations by
environmental based groups, including the Applicant which is specifically mentioned
in the following words:
“The intention by the African Network for Animal Welfare (ANAW) to refer the
matter to the East African Court of Justice seeking the Government of Tanzania to
be restrained from upgrading the Natta-Mugumu-Loliondo road is yet another such
protest.”
63. Further, that “while protesters are entitled to pursue their interests, their opposition
to the proposed route ignores the socio-economic needs of 2.3 million people living
in Serengeti and Ngorogoro districts to whom the project is intended.”
64. The same report, however, acknowledges that the road would have grave negative
impacts and to mitigate the said negative impacts of the project relative to Serengeti,
the 53 kms stretch of the proposed road that passes through Serengeti should be
constructed to “gravel standard only”.
65. In addition, three gates between Tabora B and Kleins Camp should be operated by
TANAPA “to curb speed and avoid animal kill along this sensitive section”.
66. The above facts would lead to the obvious conclusion that the initial proposal by the
Government of the Republic of Tanzania was that the road was intended to serve
the general public and tourists in large numbers. Further, the said road would be
bituminized including the 53kms that would be within the Serengeti. Consequently,
upon the foregoing, we pause here to ask the following: Was that action proper,
lawful and within the obligations imposed on Tanzania by Articles 5(1) (c), 8(1) (c)
and 111 (2) of the Treaty?
67. The experts called by the Parties have differed on the consequences of negative
impacts but agree on all the negatives. Happily for us, UNESCO, a renowned world
body and objective on the subject has given us the answer to the question. Elsewhere
above, it stated that:
(i) The proposed alignment of the road could result in irreversible damage to the
property’s (Serengeti’s) Universal value;
(ii) It supports a Strategic Environmental and Social Assessment which would
include a southern alignment which would avoid the Serengeti.
68. In the Inter-Consult Ltd report and in the evidence of Ms. Zafarani Madaya, and
clearly acting on both pressure from environmentalists, including the Applicant as
well as UNESCO, the Government of the Republic of Tanzania has not moved to
the second stage of the project i.e the preparation of a detailed engineering design
and a comprehensive Strategic Environmental and Social Assessment. It has also
not moved to seek the input of TANROADS and the National Environmental
Management Commission neither has the approval of the Minister in-Charge of the
Environment been obtained. The road project in fact, although conceptualized in
2005 and the second stage commenced in 2009, has not moved at all and partly also
because of the pendency of this Reference.
69. With that background, the Government of the Republic of Tanzania as can be seen
from the UNESCO reports, seems to have taken into account the concerns raised
on the negative impacts on the environment and from evidence before us, has not
256
started construction of the proposed road.
70. But, that is not the end of the matter because the Applicant is seeking declaratory
and injunctive orders that the project as initially conceptualized and if implemented
would have grave and irreparable negative consequences to the Serengeti and that
fact alone is sufficient to warrant a finding that the Respondent is in violation of the
Treaty.
71. On that aspect of the case it is difficult to fault the Applicant because that is precisely
what UNESCO specifically told the Respondent and also specifically suggested that
the road should be constructed so as to avoid the Serengeti and certainly that is what
caused M/s Interconsult Ltd to propose that the 53kms road should be upgraded
to gravel standards only as opposed to the initial proposal to upgrade it to bitumen
standard.
72. The point here is that all parties now agree that if the initial proposal is implemented,
then the adverse effects would not be mitigated by all the good that the road was
intended to bring to the 2.3 million people residing in the affected areas of Mugumu-
Loliondo.
73. Turning back, therefore, to the obligations imposed on Tanzania by Articles 5(3),8(1)
(c),111(2) as well as 114(1) of the Treaty, there is no doubt that if implemented, the
road project as initially conceptualized, would be in violation of the Treaty to that
extent only.
74. Regarding alleged breaches of the cited International Conventions and Declarations,
once we have found as we have done above, our mandate would have been exercised
and we see no reason to visit obligations in respect of other international instruments
save reiterating our decision in Democratic Party (supra). But having said so, we
must also note that while the Applicant mentioned those instruments in its pleadings
and submissions, it failed to show what parts of them were violated and in fact it was
the Respondent who spent considerable time in his submissions in a bid to show that
there were no violations of any of those International Instruments.
75. In the circumstances, we can only answer the issue framed above partly in the
affirmative and will make appropriate and necessary orders at the end of this
Judgment.
Issue No. 4 – Whether the Applicant is entitled to the prayers sought
76. We have already indicated that prayers (ii) and (iv) of the Reference were abandoned.
77. In regard to prayer (i), we find that whereas the Government of the Republic of
Tanzania is lawfully entitled to construct roads within its territory, where it fails in
its obligations to the conservation and protection of the environment within the
meaning of Articles 5(3) (c), 8(1) (c) and Article 111(1) as well as Article 114(1), then
this Court can properly make declarations in that regard. In the instant Reference, it
is obvious that while its actions had the potential to cause irreversible damage to the
Serengeti environment and ecosystem, once UNESCO and other bodies, including
the Applicant intervened, it did not proceed with the road project and instead
retreated to the drawing board and is conducting further studies on it. Whatever
orders we must make therefore must be preventative and geared towards restraining
it from pursuing the bituminized road project and secure the Serengeti ecosystem
and any roads in the Serengeti should generally be used by wildlife, tourists and Park
257
administrators and not the general public because of the attendant risks associated
with such use.
78. However and flowing from the above, there is no doubt that if is allowed to proceed
with the road project as earlier conceptualized ,it would be in breach of the above
Articles of the Treaty.
79. The necessary orders to make in that regard will shortly become apparent.
80. On prayer no. (iii), the Applicant seeks to restrain the Respondent from maintaining
any road or highway across the Serengeti National Park. That prayer must necessarily
be determined together with prayer no. (v) where the Applicant seeks orders to
restrain the Respondent from removing or relieving itself from obligations imposed
by UNESCO with regard to the intended road. Having anxiously considered the
matter and as can be seen above, we have found that all evidence points to the fact that
if the road project is implemented as originally intended, then following UNESCO’s
findings it could have an irreversible negative impact on the Serengeti environment
and ecosystem. While this view is not expressly shared by the Respondent, we are
persuaded by those findings. In fact, the Respondent seemed to have taken note of
that fact and has effectively suspended the project and that is an admission that it has
realized the error in the initial decision. His own consultant also gave a long list of
possible negative impacts and which tally with those given by the Applicant.
81. We are therefore convinced that if the road project is implemented as originally
planned, the effects would be devastating both for the Serengeti and neighbouring
Parks like the Masai Mara in Kenya and it behoves us to do the right thing and
stop future degradation without taking away the Respondent’s mandate towards
economic development of its people.
82. In the event, we find that prayer (iii) is practical and proper in the totality of our
findings above and to ensure that the United Republic of Tanzania as a Partner
State stays within its obligations under the Treaty. However the final orders to be
made will be tailored so as not to tie its hands in programmes that it has designed
for its people. This is within our mandate under Rule 68(5) of the Court’s Rules of
Procedure.
83. As to costs, we find that the litigation was in the wider public interest and for the sake
of a sustainable future for the environment. The Applicant has no direct benefit in
our final orders and so each party shall bear its own costs.
Conclusion
84. This Reference raises issues that are today the subject of wide debate across the world,
including; environmental protection, sustainable development, environmental
rule of law and the role of the State in policy formulation in matters relating to the
environment and natural resources. In addition, the role of the Court in balancing
its interpretative jurisdiction against the needs of ensuring that Partner States are
not unduly hindered in their developmental programs has come to the fore. All these
issues must however be looked at from the one common thread running through
the Reference viz. the need to protect the Serengeti ecosystem for the sake of future
generations and whether the road project has potential for inflicting irreparable
damage to the environment. The damage will be irreversible and we have already
258
ruled on that subject based on the evidence before us and no more. And we have
also restrained ourselves from merely approving the decision of the United Republic
of Tanzania because it may be a popular decision with its policy makers-See Society
for the Protection of Silent Valley vs Union of India 1980 Kerala HC. Whatever
orders we must make therefore should be preventative and for obvious reasons; the
environment, once damaged is rarely ever repaired.
85. Having so stated, the final orders that are appropriate in the unique circumstances of
the matter before us are the following:
i) A declaration is hereby issued that the initial proposal or the proposed action
by the Respondent to construct a road of bitumen standard across the Serengeti
National Park is unlawful and infringes Articles 5(3)(c),8(1)(c),111(2) and 114(1)
of the Treaty.
ii) A permanent injunction is hereby issued restraining the Respondent from
operationalising its initial proposal or proposed action of constructing or
maintaining a road of bitumen standard across the Serengeti National Park
subject to its right to undertake such other programmes or initiate policies in
the future which would not have a negative impact on the environment and
ecosystem in the Serengeti National Park.
iii) Each party shall bear its own costs.
It is ordered accordingly.
****
In the matter of a Civil Appeal No 1 of 2009
The Attorney General of Kenya And Professor Peter Ayang Nyong’, Abraham Kibet
Chepkonga, Fidelis Mueke Nguli, Hon. Joseph Kamotho, Mumbi Ngaru, George
Nyamweya, Hon. John Mumyes, Dr. Paul Saoke, Hon. Gilbert Ochieng Mbeo,
Yvonne Khamati, Hon. Rose Waruhiu
Mary Stella Arach-Amoko, DPJ

March 5, 2010
Extension of time for service of a Memorandum and Record of Appeal -Whether a

Single Judge or the First Instance Division had jurisdiction and application concerning
an appeal.
Rules: 4, 78(2) 80,82,83, 90 (1), 114, Sixth Schedule of the East Court of Justice Rules
of Procedure, 2010
Upon the completion of Reference No 1 of 2006 costs were awarded to the

Respondent and their bill of costs was taxed in favour on 18th December 2008. Being
dissatisfied the Applicant belatedly sought to challenge the taxation however the
application was heard and dismissed by the Principal Judge on 16th October 2009.
Subsequently, the Applicant filed a Memorandum of Appeal and a Record of Appeal
within the requisite time in the Appellate Division Registry however service was not
done within seven days as prescribed in the court rules. Through this application,
the Applicant sought orders of an extension of time, in the First Instance Division,
for serving the Memorandum of Appeal and the Record of Appeal claiming that the
delay was occasioned by the Christmas vacation and late receipt of information.
The Respondents contended that the application should have been filed in the
Appellate Division.
Held:
The primary and purpose of the Court Rules is to regulate and to ensure the orderly
conduct of proceedings before the Court. Once an appeal has been lodged in the
Appellate Division under Rule 86, the matter ceases to be within the jurisdiction of the
First Instance Division. Any applications thereafter become matters for the jurisdiction
of the Appellate Division and the First Instance Division ceases to have jurisdiction over
them. Only the Appellate Division could extend time thus the application was struck out.
Cases Cited:
The East African Law Society And Others v. The Attorney General of Kenya And Others,
260
Ruling
1. This is an application by the Attorney General of Kenya (hereinafter referred to as

the Applicant) brought by Notice of Motion under Rule 4 of the Rules of this Court
for orders that:
i. This matter be certified urgent and be heard on priority basis.
ii. The time for serving the Memorandum of Appeal and the Record of Appeal is
extended to enable the applicants serve the Memorandum of Appeal and Record
of Appeal out of time.
iii. In the alternative, the Memorandum of Appeal and the Record of Appeal filed
and served on the Respondents on the 13th of January 2010 be deemed as dully
served.
2. The grounds of the application are that: a) The delay in serving the Memorandum
of Appeal and Record of Appeal was occasioned by hardship due to Christmas
Vacation. b)The delay in serving the Memorandum of Appeal and the Record of
Appeal was due to the fact that the counsel conducting the matter for the Applicant
did not receive information that the documents had been executed by the Registrar
until the 6th of January 2010, two days after the expiry of the period for service.
3. The application is supported by two affidavits sworn by Mr. Anthony Oteng’o
Ombwayo, Senior Principal Litigation Counsel, on the 12th January and the 19th
February 2010 respectively.
4. Ms Judith Sijeny, one of the Respondents’ counsels swore an affidavit in reply on
behalf of the Respondents on the 4th February 2010 opposing the application. On
the same date, Counsel for the Respondents also filed and served a notice of objection
notifying the Applicant of his intention to raise the following objections during the
hearing of the application:
5. “1. That the appellant ought to have filed his application before the Court of Appellate
Division and not before the Court of First Instance Division. 2. The appellant’s
motion lacks merit and must fail with costs to the Respondent.” On record is another
affidavit sworn by one Boniface Namulu Ogoti, a Clerk of this court, on the 2nd
February, 2010, on the instruction of the Registrar.
6. The background to the application is rather long and checkered. It began with
Reference No. 1 of 2006, Professor Peter Anyang Nyongo And Others vs The Attorney
General of Kenya And Others. This Court decided that Reference in favour of Professor
Anyang Nyongo And Others and ordered the Attorney General to pay them inter
alia, the taxed costs of the Reference. Consequently, Professor Anyang Nyongo And
Others filed their bill of costs before the Registrar vide Taxation Cause No. 6 of 2008.
The Registrar taxed it and allowed $ 2, 033,164.99 in his Ruling delivered on the 19th
December 2008.
7. The Attorney General was dissatisfied with the learned Registrar’s decision and
wished to challenge it under Rule 114 which provides that: “Any person who is
dissatisfied with a decision of the taxing officer may within 14 days apply for any
matter to be referred to a single judge of the Court whose decision shall be final”.
By the time the Attorney General took the decision to refer the matter before a single
judge of the Court under the provisions of Rule 114 above, however, the 14 days
AG Kenya v Prof. Nyongo’ and others
261
period had long elapsed.

8. Consequently, on the 3rd April 2009, the Attorney General filed Application No. 4
of 2009, between the same parties, under Rule 4 of the Rules of Court for extension
of time to file the said reference.
9. That application was heard by Hon. Justice Busingye the Principal Judge of the
Court and a judge of the First Instance Division who delivered his Ruling on the
16th October 2009, dismissing the application, again with costs to Professor Anyang’
Nyongo And Others.
10. The Attorney General was once again dissatisfied with that Ruling and on the 29th
October 2009, a Notice of Appeal was lodged on his behalf under Rule 78(2) in the
Court’s Registry indicating his intention to appeal against the said decision. The
Notice of Appeal was lodged within the 14 days prescribed by Rule 78(2) for lodging
a Notice of Appeal.
11. On the 28th December 2009, Counsel for the Attorney General lodged in this
Court’s Registry in the Appellate Division a Memorandum of Appeal and a Record
of Appeal. These documents were also lodged within the 60 days prescribed by Rule
86. The appeal was registered in the Appellate Division as Civil Appeal No. 1 of 2009.
12. The problem arose in service of the said documents on the Respondents. Rule 90 (1)
provides that:
“(1) The appellant shall, before or within seven days after lodging the memorandum
of appeal and the record of appeal in the appropriate registry, serve copies of them
on each respondent who has complied with the requirements of Rule 80.”
13. Rule 80 requires every person on whom a notice of appeal has been served, to lodge
in the appropriate registry and serve on the intended appellant, a full address for
purposes of service within fourteen days after service of the notice of appeal. This is
not in issue.
14. It is also not disputed that the Applicant’s Counsel did not serve the memorandum
and record of appeal on the Respondents within the seven days prescribed under
Rule 90(1). According to learned counsel for the Applicant, Mr. Ombwayo, the
documents were not served on the Respondents until 13th January 2010. By then,
the seven days prescribed by Rule 90(1) had long elapsed.
15. Mr Ombwayo apparently realized this irregularity, and has filed the instant
application in a bid to rectify it by the orders sought herein. At the hearing of the
application before me on the 17th February 2010, Mr. T. J. Kajwang, learned Counsel
for the Respondents raised two issues for determination by court, namely:
1)Whether the First Instance Division has the jurisdiction to determine this
application. 2) Whether the applicant has met the conditions for extension of time.
Submissions followed the same order.
Issue No. 1: Whether the First Instance Division has the jurisdiction to determine
this application.
Mr. Kajwang contended that: The Applicant should have filed the instant application
in the Appellate Division and not in the First Instance Division. The confusion seems
to have arisen from Rule 83 which is entitled “Application to First Division first”, but
Rule 83 borrows from Rule 82 because Rule 82 talks about “Applications for leave to
appeal”, and Rule 84 gives the form of application to the Court.
262
16. Rule 83 does not apply to applications for extension of time under Rule 4. The Rules
are compartmentalized into different sections dealing with each of the two Divisions
of the Court. Rule 83 is in Part C which deals with Proceedings before the Appellate
Division. It exists because there are instances in which there are applications which
can be made to the First Instance Division because an appeal has not been instituted
or filed. Once that is done, then there is a proper appeal before the Appellate Division
which is the Court which has the jurisdiction and direct control over the appeal in
both procedural and substantive law.
17. Rule 83 is titled “Applications to First Instance Division First. Whenever application
may be made either to the Appellate Division or to the First Instance Division, it
shall in the first instance be made to the First Instance Division”.Rule 82, the rule
immediately before this Rule is titled “Application for leave to appeal”. Rule 82(2)
says “Where an appeal lies with the leave of the Appellate Division, application for
leave shall be made in the manner prescribed in rules 83 and 84 within fourteen days
of the decision against which it is desired to appeal or, where an application for leave
has been made to the First Instance Division and refused, within fourteen days of
that refusal.”
18. Rule 84 gives the form of application to the Court, which is by Notice of Motion.
It is appears to be clear that Rule 83 borrows from Rule 82 because Rule 82 talks of
“Applications for leave to appeal”, and it says that where there is that application,
then Rules 83 an 84 come into play, and it makes sense because where an applicant
wishes to appeal with the leave of court, that application may be made to both the
divisions. Rule 83 explains clearly that because it can be made to both divisions, it
should be made first to the court of First Instance Division. That is the only sense in
which Rule 83 exists in this procedure. It does not apply to applications under Rule 4
or to any other applications other than applications under Rule 82.
19. If an applicant served or filed a Notice of appeal out of time, and were to come to
court for extension of time, it is probable that he could approach the Court of First
Instance Division as a result of Rule 83 because an appeal has not yet been filed or
instituted. But when you consider Rule 86 which is “Institution of appeals”, sub-
section 1 says: (1) Subject to the provisions of Rule 118, an appeal shall be instituted
by lodging in the appropriate registry, within sixty days of the date when the notice
of appeal was lodged— “(a) a memorandum of appeal, in quintuplicate; (b)the
record of appeal, in quintuplicate; (c) the prescribed fee; and (d) security for the cost
of appeal.”
20. Once this is done, then there is a proper appeal before the Appellate Court which
is under the direct jurisdiction and control both in matters of substantive law and
procedural law before the Appellate Court. An Applicant would not therefore confuse
both courts there. Where an appeal has been properly filed, then he cannot come
to the court of First Instance to determine procedural issues regarding an appeal
which is substantively and properly filed. Once the Attorney General did what he
did under Rule 86, there was an appeal properly filed within time, and having done
that, he evoked the jurisdiction of the Appellate Court Division and the Appellate
Division therefore exercises a competent jurisdiction both on substantive law and
on procedural law.
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21. Rule 83 is not one of those Rules which deal with the First Instance Court, unless
the applicant is coming to court for leave to appeal, or leave for extension of Notice
of appeal before filing or instituting an appeal. Once an appeal has been instituted,
the Court of First Instance is functus officio in respect of those issues and the
Appellate Court takes over the jurisdiction to determine both the procedural issues
and substantive issues. If Rule 83 were to be construed otherwise, it would conflict
with Article 23 of the Treaty because after the amendments, Article 23 has created
the two Divisions and in paragraph 3 it says that the First Instance Division shall
have jurisdiction to hear and determine at the first instance, subject to a right of
appeal to the Appellate Division under Article 35 (A), any matter before the Court
in accordance with the Treaty. So there is a right of appeal and that right of appeal
is exercised when an applicant has evoked Rule 86, and once there is an appeal
properly instituted, it would conflict with the jurisdiction allocated by Article 23
of the Appellate Division. It says “An appeal from the judgment or any order of the
First Instance Division of the Court shall lie to the appellate division on points of
law, grounds of jurisdiction, or procedural irregularity”.
22. The decision that the applicant seeks to appeal from is from the Principal Judge and
is on grounds of procedural irregularity. This application also touches on procedural
irregularity. If one construed Rule 83 in a way that would allow the First Instant
Division to exercise jurisdiction, it would conflict with Articles 23 and 35 (A) of the
Treaty.
23. The only jurisdiction left for the Court of First Instance is found in Rule 59 (3), since
the applicant is dissatisfied with the decision of a single judge of the First Instance
Division in an application for extension of time. The matter would now have to be
placed before a full bench of three judges of the First Instance Division, and not by
an appeal to the Appellate Division.
24. The application is misconceived in that Mr. Ombwayo filed it in the First Instance
Division. He should have filed it in the Appellate Division under Rule 4 and the
Appellate Division would exercise a competent jurisdiction to extend time. The rules
of court need to be properly adhered to and need to be properly exhausted for the
applicant to get the remedy he seeks from the Court. The application ought to fail
even for this reason alone.
25. Mr. Ombwayo’s response is that:
He filed the application in the proper Division of the Court. What is before court is
an application within the appeal that was filed on 28th December 2009. The appeal
was filed in the Appellate Division. Rule 4 provides that the court may for sufficient
reason extend the time limited by the rules or by any decision of the court for doing
any act authorized or required by these rules, so any Division of the Court has the
jurisdiction to extend time. One might file an appeal in the Appellate Division, but
request the First Instance Division to extend time within which to file the appeal.
26. Rule 4 provides that you can file the application either in the First Instance Division
or the Appellate Division, but under Rule 83, if you can file the application in both
Divisions, then you should file the application in the First Instance Division first.
This Court still has jurisdiction to entertain the application. Rules 4 and 83 ought
to be read with the interpretation section Rule 2, where “Court” is defined as “the
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East African Court of Justice established under the Treaty and includes any division
of that Court and a single judge exercising any power vested in that Judge sitting
alone”.
27. There is only one Court with two divisions under the Treaty, not two. So, whatever
decision comes from the First Instance Division or the Appellate Division, those are
decisions of the Court. Rule 83 provide that you first make your application to the
First Instance Division. Therefore, Rule 83 should be read with Rule 4. Since Rule 4
provides that you can file the application in either Division of the Court, it means
that you can file the application in either Division of the Court, but you commence
your application in the First Instance Division.
28. Rule 59 is discretionary, one can choose to go by Rule 59 by filing a reference to full
bench, but that does not take away the right of appeal under Rule 77. Under Rule 77,
the applicant has two options, to refer the matter to a full bench or to appeal. The
applicant has opted to appeal because under Rule 77, one can appeal on points of law
against the decision of a single Judge. Both rights are concurrent. You can refer the
matter to a single Judge, a full bench or institute an appeal.
29. The fact that Part C deals with appeals does not pre-empt the application of Rule
4 because if you look at Part C section 18 which deals with the proceedings in
the Appellate Division, there is no distinct provision for extension of time in the
Appellate Division. The provisions for extension of time is in section 1 Part A which
is under the General section and that part is applicable to all parts. Rule 4 is within
this general section. Therefore, under Rule 4, each division can extend time.
30. Mr. Ombwayo compared the Rule to the provisions in the rules of Kenya, where the
Court of Appeal can grant leave to appeal and also the High Court can grant you the
same leave. He argued that he is not asking for any action to be done in the Appellate
Division, he is only asking to serve a record of appeal, which is a step provided for by
law. The objection should be therefore be overruled.
31. After careful consideration of the submissions by both learned counsel, and perusal
of the Rules, this is my finding and decision: This issue basically revolves around the
interpretation of Rules 4 and 83 of the rules of this Court. The Vienna Convention
on the Law of Treaties sets out international rules of interpretation of treaties. Article
31(1) 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 full context and in
light of its object and purpose.”
32. Article 32 provides that where, in interpreting a treaty, the application of Article 31
leaves the meaning ambiguous or obscure or leads to a result which is manifestly
absurd or unreasonable, recourse would be had to supplementary means of
interpretation including the preparatory work of the treaty and the circumstances
of its conclusion.
33. This rule of interpretation has been adopted by this Court over the years in a number
of references including for instance, Ref. No. 3 of 2007, The East African Law Society
And Others versus The Attorney General of Kenya And Others at pages 23 to 24.
These rules are applicable to the East African Court Of Justice Rules of Procedure,
2008, by virtue of the fact that the said Rules are made by the Court in exercise of the
powers conferred on the Court by Article 4 of the Treaty for the Establishment of the
265
East African Community. It is therefore part and parcel of the Treaty.

34. It is common knowledge that initially, the Court was one, but the Treaty was amended
and two Divisions were created under Article 23, namely, the First Instance Division
and the Appellate Division. Consequently, the Rules were revised by the Court in
2008 to conform to the Treaty amendments restructuring the Court. The rules are
indeed divided or compartmentalized into four Parts namely, A, B, C and D, entitled
“General Provisions”,
“Institution of Proceedings In First Instance Division,” “Proceedings In The Appellate
Division,” and “Miscellaneous Provisions,” respectively.
35. Part A has sections I to V entitled “General,” “Registrar and Registry”, “Documents”,
“Appearance”, “Court Vacation and Holidays”, respectively. Rule 4 is found section
I of Part A entitled “General”. Rule 4 provides that: “A Division of the Court may
for sufficient reason extend the time limited by these Rules or by a decision of the
Court for the doing of any act authorized or required 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 these Rules to any such time shall be construed as a reference
to such time so extended”.
36. From the definition of “Court” under Rule 2 that is “…..the East African Court of
Justice established under the Treaty and includes any division of that Court and a
single Judge exercising any power vested in that Judge sitting alone”, it would appear
on the face of it that under Rule 4, extension can be granted by either division of the
Court and applications can therefore be made in either division as submitted by Mr.
Ombwayo.
37. Taking into account the general principles of interpretation enunciated in Article 31
of the Vienna Convention, however, it is my view that Rule 4 must be interpreted
not only in accordance with its ordinary meaning, but also in its context and in light
of its objective and purpose. Primarily, one has to take into account the objective of
the Treaty and of the Rules as a whole.
38. It is gainsaid that the primary objective and purpose of the Rules like any other Rules
of procedure, is to regulate and to ensure the orderly conduct of proceedings before
the Court as established by the Treaty. The object and purpose of the Amended
Rules is to “revise the rules of procedure to conform to the Treaty amendments
restructuring the Court”.
39. Article 23 (2) and (3) of the Treaty reads: “2.The Court shall consist of a First
Instance Division and an Appellate Division. 3. The First Instance Division shall have
jurisdiction to hear and determine, at first instance, subject to a right of appeal to the
Appellate Division under Article 35A, any matter before the Court in accordance
with this Treaty.”
40. Article 35 A provides that: “An appeal from the judgment or order of the First
Instance Division of the Court shall lie to the Appellate Division on- (a)points of law
(b)grounds of lack of jurisdiction; or (c)procedural irregularity”.
41. The interpretation by Mr. Ombwayo is that since Rule 4 provides that you can file
the application for extension of time either in the First Instance Division or the
Appellate Division, then Rule 83 comes into play because it provides that you begin
with the First Instance First.
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42. With much due respect to Mr. Ombwayo, if this interpretation were to be accepted,
it would lead to a result that is manifestly absurd and unreasonable and which
is likely to lead to total confusion and uncertainty in the conduct of proceedings
before the Court in that even after an appeal has been lodged and is lying before the
Appellate Division as in the instant case, a single judge of the First Instance Division
can extend time in the Appellate Division. This could not have been the object and
purpose of Rule 4 let alone 83.
43. Further, and of equal importance is the fact that the decision the Applicant seeks
to appeal from is of a single judge of the First Instance Division. As stated before,
the appeal is lying before the Appellate Division. If Rules 4 and 83 were construed
according to Mr. Ombwayo’s interpretation, it will also conflict with the clear
provisions of Articles 23 and 35A of the Treaty which created the two distinct and
separate divisions of the Court and spelled out their jurisdictions. According to
the two Articles the First Instance Division shall have the jurisdiction to hear and
determine at first instance, subject to a right of appeal to the Appellate Division, any
matter before the Court in accordance with the Treaty. Therefore, there is a right of
appeal, and that right of appeal is exercised when an applicant evokes the provisions
of Rule 86 by lodging a memorandum and record of appeal in the Appellate Division
and the appeal is registered and given a number, as in the instant case. The First
Instance Division does not have the jurisdiction after this stage in the proceedings to
entertain any application for extension of time because the matter is then squarely
within the jurisdiction of the Appellate Division.
44. In any case, applications for extension of time in the First Instance Division are
specifically catered for in Rule 59(2) (a) which provides that a single judge of the
division can extend time as stated therein at the trial stage. The confusion by Counsel
Ombwayo should not have therefore arisen in the first place in light of this provision.
45. Regarding Rule 83, that Rule is entitled “Applications to First Instance Division
First”. It is found in Part C of the Rules entitled “Proceedings In The Appellate
Division”.This part contains Rules dealing with the Appellate Division.
46. Rule 83 provides that: “Whenever an application can be made either to the Appeallate
Division or to the First Instance Division it shall first be made to the First Instance
Division”.
Rule 83 is allied to Rule 82, especially Rule 82(2). They concern applications for leave
to appeal to the Appellate Division. This is obvious from the provisions of Rule 84
(2) which prescribes the form of application which reads: “(2) A Notice of Motion
shall be substantially in the Form A in the Sixth Schedule to these Rules and shall be
signed by or on behalf of the applicant.”
Form A in the Sixth schedule shows that the application is to be made in the Appellate
Division.
47. It therefore very clear that this Rule applies to proceedings in the Appellate Division
only. It must, however, be read together with the preceding Rules in Part C including
Rule 82 which makes provision for applications for leave to appeal.
48. It is also clear that all the applications provided for under Rule 83 are in part C and
are supposed to be made before the institution of the appeal. Applications that can
be entertained by the First Instance Divisions there under are mainly applications
267
for leave to file an appeal, extension of time to file or to serve a notice of appeal, not
applications for extension of time to serve a memorandum and record of appeal.
Once the appeal has been lodged in the Appellate Division under Rule 86, the matter
ceases to be within the jurisdiction of the First Instance Division. Any applications
thereafter emanating from the instituted appeal becomes a matter for the jurisdiction
of the Appellate Division. The First Instance Division ceases to have jurisdiction
over them.
49. According to the Notice of motion, the Applicant lodged his appeal in the Appellate
Division on the 28th
December 2009. Mr. Ombwayo has also alluded to the said appeal in his submissions.
All the Applicant now seeks is an extension of time to serve the appeal on the
Respondents.
50. Although Rule 4 makes provision for such applications, it is my opinion that the
time can only be extended by the Appellate Division where the appeal is lying, and
not the First Instance Division.
51. For these reasons, I find merit in Mr. Kajwang’s objection and I hold that neither
a single judge of the First Instance Division nor the First Instance Division has the
jurisdiction to entertain an application of this nature. The answer to this issue also
determines the outcome of the entire application since a decision made without
jurisdiction is in law a nullity. I therefore need not go into the second issue, which I
believe is the preserve of the Appellate Division to which the Applicant should direct
his application.
52. The application is accordingly struck out with costs to the Respondents.
***
Arising out of Reference No. 7 of 2010
Mary Ariviza and Okotch Mondoh And Attorney General of the Republic of Kenya
and the Secretary General of the East African Community
Busingye Johnston PJ, Stella Arach Amoko DPJ, Mkwawa John J, Butasi Jean Bosco J,
Kubo Benjamin
1, December 2010
Jurisdiction- Invoking internal laws- Preliminary objection- The principle of pacta

suntservanda – The Vienna convention on the Law of Treaties
Articles: 23(1), 27(1) and 30 (1) of the EAC Treaty –Article 2(3) of the Constitution of
Kenya - The Vienna Convention on the Law of Treaties.
The Applicants filed Reference No 7 of 2010 claiming that the conduct and process
of a Referendum in the Republic of Kenya as well as the promulgation of the
new Constitution were contrary to law, infringed the Treaty for the East African
Community and should be declared null and void. They sought a temporary
injunction restraining and prohibiting the 1st Respondent from receiving, tabling
and or passing any legislation to implement the new constitution until the hearing
and determination of the Reference.
The Respondent raised a preliminary objection claiming inter alia that the court had
no jurisdiction.
The issue for determination was whether the Court had jurisdiction to hear and
determine the application and the reference since the Constitution making process
was within the sovereign power of Kenyans and dispute settlement was vested in the
Interim Independent Constitutional Dispute Resolution Court.
Held:
1. The Court had jurisdiction to hear the Reference and the merit of the Applicants’
claim would be determined by the Court after the hearing.
to international law on interpretation of treaties, the main one being the Vienna
Convention on the Law of Treaties. The Convention embodies the principle of pacta
sunt servanda that prohibits a party to a treaty from invoking its internal law as
justification for not observing or failing to perform the treaty. Thus the preliminary
objection is overruled.
269
Cases cited:
Modern Holdings v Kenya Ports Authority EACJ Reference No.1 of 2008
Owners of Motor Vessel “Lillian” v Caltex oil (Kenya) Ltd[1989] KLR 1
Professor Anyang’ Nyong’o and Others v The Attorney General of Kenya and Others,
EACJ Reference No 1 of 2006
Ruling
1. This is a ruling in respect of a preliminary objection raised in the above application

when it came before us for hearing on the 28th, October, 2010.
2. The brief background is as follows:
Mary Ariviza and Okotch Mondoh the 1st and 2nd Claimants in this Application
have filed a reference in this Court under Articles 5(1), 6 (c) and (d), 7(2), 8(1) (c), 27
(1), and 29 of the Treaty for the Establishment of the East African Community (“the
Treaty”), Articles 1, 3, 7(1) and 9(2) of the African Charter on Human and Peoples
Rights.
3. Their claim, briefly, is that the conduct and process of the Referendum as well as the
promulgation of the new Constitution in the Republic of Kenya were contrary to
law, infringed the Treaty for the East African Community and should be declared
null and void.
The reference is pending before this Court.
4. At the time of filing the Reference, the claimants also filed the instant application for
a temporary injunction praying for the following substantive Orders:
1) That the 1st Respondent be restrained and prohibited from receiving, tabling and
or passing any legislation to implement the new constitution until the hearing
and determination of this case.
2) That any new legislation passed by Parliament to implement the new Constitution
be stayed until the hearing and determination of this case.
3) That the 2nd Respondent does commence an investigation, as provided by
Article 29 of the Treaty for the Establishment of the East African Community,
into the violation of the law and the Treaty by the 1st Respondent.
5. The main ground for the Application is that the 1st Respondent has begun the
process of implementing the illegal Constitution by fast -tracking bills through the
National Parliament to the detriment of the Claimants and, that, the Reference shall
be rendered nugatory if the injunction is not granted.
6. In response to the application, Ms Wanjiku A. Mbiyu and Kepha Onyiso, learned
Counsel for the 1st Respondent filed a notice of preliminary objection containing six
grounds. At the commencement of the hearing they abandoned one and maintained
the following five:
7. That this Court has no jurisdiction to hear and determine the reference because
neither the Treaty nor any Protocol grants it jurisdiction. That under Article 2(3) of
the Kenyan Constitution, jurisdiction to hear and determine issues arising from the
constitution making process was vested in the Interim Independent Constitutional
Dispute Resolution Court (the “IICDRC”) and hence this Court’s jurisdiction is
ousted.
270
8. That under Article 60 A of the replaced Constitution, the jurisdiction to hear and
determine issues arising from the Constitution - making process was vested in the
IICDRC and hence this Court lacks the requisite Jurisdiction.
9. That since the Constitution making process is within the sovereign power of
Kenyans and this Court is not one of the organs through which such sovereignty can
be exercised, it lacks jurisdiction to hear and determine this matter.
That the Court lacks jurisdiction to stop Parliament undertaking its legislative
function.
10. Ms Wanjiku canvassed the preliminary objections. On the first one, she contended
that the Court does not have jurisdiction to hear and determine the Reference as well
as the Application as neither the Treaty nor any Protocol grants it such jurisdiction.
She argued that Article 27 (1) gives this court jurisdiction to interpret and apply the
Treaty but that the Reference as well as the present Application seeking for interim
orders do not, in her view, come under the purview of Article 27(1). Equally, she
contended that Article 27 (2) is not applicable in view of the fact that the jurisdiction
of the Court envisaged therein is yet to be determined by a decision of the Council of
Ministers of the East African Community.
11. On the second objection she submitted that Article 2 of the Constitution of Kenya
provides that the validity of the constitution cannot be challenged in any forum
including this Court.
12. On the third objection Ms Wanjiku contended that Section 60 (A) of the replaced
Constitution of Kenya vested jurisdiction to hear and adjudicate issues pertaining
to the referendum in the Interim Independent Constitutional Dispute Resolution
Court (IICDRC) which was in existence and therefore this matter could not be a
subject of determination by this Court.
She did not canvass the fourth ground.
13. On the fifth objection she contended that this Court does not have jurisdiction to
stop the legislative process of implementing the Constitution in Kenya because the
Constitution, as the Supreme Law, is very clear on the process of its implementation.
Therefore, she argued, this Court lacks jurisdiction to issue any injunctive or
conservatory orders staying that process.
14. She prayed the Court to uphold the preliminary objection and dismiss the application
with costs to the Respondents.
15. The 2nd Respondent was represented by Mr. Wilbert Kaahwa, Counsel to the
Community. He associated himself with the submissions made on behalf of the 1st
Respondent on the preliminary objection. He however made some additions.
16. First, he told the Court that under the Vienna Convention on the Law of Treaties,
1969, the Treaty for the East African Community is the “grund- norm” for the
integration process and does not oust the sovereignty of the Partner States. He
contended that this Court has no jurisdiction to entertain the Application and the
intertwined Reference before it.
17. He referred the Court to the word “initially” used in Article 27 of the Treaty and
contended that the extent of jurisdiction of the Court goes only as far as applying
and interpreting the Treaty and not further.
18. Mr. Kaahwa argued that the present application is based on the claimant’s
dissatisfaction with the constitution making process and with the constitutional
271
implementation in Kenya. He told Court that the replaced Constitution established

the IICDRC and vested in it exclusive jurisdiction to deal with such disputes, that
it had in fact done so, a fact the applicant is aware of. He therefore contended that
the proper forum to pursue dissatisfaction with the Constitution making process in
Kenya was the IICDRC not this Court.
19. Regarding disputes on the implementation of the Constitution, Mr. Kaahwa argued
that the new Constitution provides, in its chapter 10, judicial organs with authority
to address complaints that may arise during the legislative process in Kenya.
He finally told the Court that Constitutional matters also fall in the Executive and
Legislative domain of States and that there are issues of public interest and political
necessity that the court ought to take into account when addressing such matters.
20. The claimants were represented by Mrs. J.W.Madahana and Mr.Luka Sawe. Mrs.
Madahana made the reply. We observe at this point that she did not respond to the
matters raised in the preliminary objections in the order they were raised or in any
ascertainable order. Be that as it may, the foregoing is what we were able to discern
from her lengthy submissions.
21. First, she contended that the preliminary objection is misconceived because issues
raised in preliminary objections should be, purely, legal yet, for example, the issue
of whether there is a pending petition in Kenya’s Constitutional Court similar in
content to the present application is not an agreed fact.
22. Secondly she argued that it was also not agreed that there was a court established
and still able to determine this case in Kenya as, from the legal point, it is no longer
a Court.
She argued further that although the Respondents had relied on Article 27 of the
Treaty to challenge the jurisdiction of this court, she was referring the Court to
Article 6 (c) on peaceful settlement of disputes and (d) which sets out the fundamental
principles of the Community including adherence to principles of democracy, rule
of Law, accountability, transparency, social justice, and other values of Community.
23. She contended that here was a situation where there has been no adherence to the
law and, citing a decision of the Constitutional Court of Uganda, in the case of Paul
K. Semogerere and 2 others Vs The Attorney General of Uganda, Constitutional
Appeal N°1 of 2002, urged the Court to find that it can do something, in other words,
to find that it has jurisdiction and dismiss the preliminary objections.
24. Asked to identify for the Court specific acts that she was complaining of as violations
of the Treaty, Mrs. Madahana told Court that non- gazzettement of the notice of
petition created a situation where the claimants felt that they were not satisfied with
the way the referendum was conducted and the way the dispute arising there from
was resolved. In her view this constituted a violation of Article 6 (c) and (d) of
the Treaty which relate to peaceful settlement of disputes, adherence to democratic
principles, rule of law and other values.
Additionally she argued that the gazzettement of the results of the referendum before
their petition was heard and determined constitutes a specific act that, in her view,
violates the Treaty.
25. On the issue of sovereignty she argued that accession to the Treaty means ceding
part of sovereignty and accepting obligations to be met so that citizens can enjoy
rights conferred by the Treaty. In support of this argument she relied on a decision
272
of this court in Reference No 1 of 2006, Prof Peter Anyang Nyong’o and 10 others Vs
The Attorney General of Kenya and 2 others.
26. Mrs. Madahana referred the Court to its own judgment in Reference N°1 of 2007,
James Katabazi and 21 others Vs the Attorney General of Uganda and the Secretary
General of the East African Community, and said that Article 27 does not restrict
the Court’s jurisdiction and the Court cannot stand idly by when a fundamental
principle that underpins civilization is trampled upon.
27. In reply Ms. Wanjiku repeated her conviction that the preliminary objections were
valid and that this Court had no jurisdiction.
28. Likewise, Mr. Kaahwa reiterated his prayer adding that the requirement under Article
30 is a specific Act, regulation, directive, decision or action which is unlawful or an
infringement of the Treaty, and not a generalized one as the claimants’ application
shows.
29. The preliminary issues raised and canvassed are all objections to the jurisdiction
of this Court. What is sought, in effect, is a dismissal, in limine, of the application,
and, by implication, the Reference out of which the application arose, for want of
jurisdiction.
30. It is trite law that issues of jurisdiction, whenever raised, must be examined and
determined forthwith because jurisdiction is the bedrock on which our litigation
system is based.
In Modern Holdings Vs Kenya Ports Authority (Reference N°1 of 2008) this court took
cognizance of “……the fact that jurisdiction is basic toits adjudicatory function, such
that if it is challenged and made an issue, it ought to be addressed and determined
forthwith….”
31. The rationale for this, with which we concur, was aptly put by Nyarangi J.A in
Owners of Motor Vessel “Lillian” Vs Caltex oil (Kenya) Ltd [1989] KLR 1, at p.14
where he stated that a question of jurisdiction ought to be raised at the earliest
possible opportunity and the Court is obliged to decide on it right away. He went on
to state that “…..jurisdiction is everything. Without it a Court has no power to make
one more step……..”
32. In order to determine whether or not we have jurisdiction to hear this application or
the reference, our task must be to examine the law, issues raised in the preliminary
objections, the arguments of counsel, as well as authorities on the subject.
33. This Court is created by the Treaty and its jurisdiction is established by the same.
Article 23(1) of Treaty provides that the role of The Court shall be to ensure the
adherence to law in the interpretation, application of and compliance with the
Treaty.
34. Article 27 (1) provides that the Court shall initially have jurisdiction over the
interpretation and application of the Treaty provided that the power to interpret
shall not include the application of any such interpretation to jurisdiction conferred
by the Treaty on organs of Partner States.
35. Under Article 30 (1) the Court can determine the legality of an Act, regulation,
directive, decision or action of a Partner State or an institution of the Community,
referred to it by any person who is resident in a Partner State, on the grounds that
such Act, regulation, directive, decision or action is unlawful or is an infringement
of the provisions of the Treaty.
273
36. The Claimants’ case is that the conduct and process of the Referendum as well as the
promulgation of the new Constitution in the Republic of Kenya was contrary to law,
an infringement of the Treaty and should be declared null and void.
37. They claim that the 1st Respondent is responsible for the said conduct and process,
and the 2nd Respondent is responsible for inaction in the face of Treaty violations.
38. The Respondents’ response is a denial in toto of the alleged violations and a
contention that this court has no jurisdiction to entertain the reference.
39. Two Residents of the East African Community, alleging that a Partner State has
committed acts that violate provisions of the Treaty for the Establishment of the East
African Community, have come to the East African Court of Justice, a judicial body
established by the Treaty and entrusted with the role of ensuring adherence to law in
the interpretation, application of and compliance with the Treaty. Have those East
African residents come to the wrong court? Have they brought the wrong action?
Ought they to be heard?
40. The Respondents urged us to shut the door in the face of the Claimants and tell them
we cannot hear them because we do not have jurisdiction. The Claimants, on the
other hand, urged us to find that we have jurisdiction and hear both sides.
41. We agree with the Claimants. Whether or not there is merit in their claim is a matter
to be considered and determined by this Court after hearing the Application and
the Reference. Whether or not they have a right to bring this claim to this court and
whether this court has jurisdiction to hear it are, in our view, settled matters.
42. We are fortified in this view by the decision of this Court in the case of Professor
Anyang’ Nyong’o and Others Vs The Attorney General of Kenya and Others, Reference
No 1 of 2006, at p.10, where this Court stated as follows:
“The Treaty describes the role and jurisdiction of this Court in two distinct but
clearly related provisions. In Article 23, the Treaty provides-
“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”.
43. It then provides thus in Article 27(1)-
“The Court shall initially have jurisdiction over the interpretation and application of
this Treaty”.
to international law on interpretation of treaties, the main one being the “Vienna
Convention on the Law of Treaties.” The three Partner States acceded to the
Convention on different dates; (Uganda on 24th June 1988, Kenya on 9th November
1988 and Tanzania on 7th April 1993). The articles of the Convention that are of
particular relevance to this Reference are Articles 26 that embodies the principle of
pacta sunt servanda, Article 27 that prohibits a party to a treaty from invoking its
internal law as justification for not observing or failing to perform the treaty and
Article 31, which sets out the general rule of interpretation of treaties”.
45. In light of the foregoing we have no difficulty in finding and holding that the
preliminary objection lacks merit. We accordingly overrule it and direct that the
Application be heard on merit.
Costs shall be in the cause.
***
Samuel Mukira Mohochi And The Attorney General of the Republic of Uganda
Johnston Busingye, PJ, John Mkwawa, J, Isaac Lenaola, J

May 17, 2013
Community law precedes sovereignty -Denial of entry into Uganda - Deprivation of

liberty – Citizens of Partner States and free movement of persons- Good governance - 6
Articles: 6(d), 7(2), 27, 30, 38 and 104 of the Treaty - Article 7, 54 of the East African
Common Market Protocol – the East African Community Common Market (Free
Movement of Persons) Regulations, Annex 1- Rules1(2) and 24 of the EACJ Rules of
Procedure, 2013- Sections: 52 (a), (b), (c), (d) and (g) of the Uganda Citizenship and
Immigration Control, Chapter 66 of the Laws of Uganda - African Charter on Human
and Peoples’ Rights
The Applicant, Mr. Samwel Mukira Mohochi, is a citizen of the Republic of Kenya
and an Advocate of the High Court of Kenya and a human rights defender. On 13th
April 2011, the Applicant travelled to Uganda as part of a 14-member-delegation of
the International Commission of Jurists- Kenya Chapter (ICJ Kenya) scheduled to
meet The Chief Justice of Uganda.
Upon arrival at Entebbe International Airport the Applicant was restrained, confined
and detained in the offices of the Ugandan Immigration at Entebbe International
Airport between 9.00 am and 3.00pm when he was deported back to Kenya. He
was served with a copy of a “Notice to Return or Convey Prohibited Immigrant”
addressed to Kenya Airways. The immigration authorities did not inform him
why he had been denied entry as well as why he had been declared a prohibited
immigrant and subsequently returned to Kenya and the Respondent maintains that
immigration authorities owed the applicant such duty, under the law. And that the
action they took was lawful, bonafide, justifiable and in the security interest s of the
people of the East African Community.
The Applicant filed this Reference contending that Respondents actions were
violations of his rights and Uganda’s obligations under the Treaty, the Common
Market Protocol and The African Charter on Human and Peoples’ Rights and he
sought redress.
Held:
1. The Treaty is neither a Human Rights Convention nor a Human Rights Treaty as
understood in international law. Rather it is a Treaty to govern the widening and
deepening of, inter alia, the political, economic, social, cultural, research, technology,
defence,and security, legal and judicial cooperation between the Partner States. If
Samuel Mukira Mohochi v AG Uganda
275
the intention of the framers of Article 27(2) of the Treaty had been to deny the Court
any type of jurisdiction, as claimed by the Respondent, they would have categorically
and expressly provided so, in a prohibitive phrase. The import of this Article is that
the framers intended to extend, progressively add to or widen the jurisdiction of the
Court. Therefore this Reference was properly before the court.
2. Uganda’s sovereignty to deny entry to persons who are citizens of Partner States was
not taken away by the Treaty and the Protocol, but the exercise thereof can only be
valid if it is done in strict compliance with the requirements of Articles 104 and of
the Treaty and Articles 7 and 54(2) of the Common Market Protocol. Where Uganda
fails, refuses, ignores or otherwise does not comply with the above provisions of the
Treaty and the Protocol, it acts in violation of her Treaty obligations.
3. The denial of entry into Uganda of the Applicant, a citizen of a Partner State, without
according him the due process of law was illegal, unlawful and a breach of Uganda’s
obligations under Articles 6(d) and 7 (2) of the Treaty.
4. The actions of denial of entry, detention, removal and return of the Applicant, a
citizen of a Partner State, to the Republic of Kenya, a Partner State, were illegal,
unlawful and in violation of his rights under Articles 104 of the Treaty and 7 of the
Common Market Protocol.
5. On matters pertaining to citizens of the Partner States, any provisions of Section
52 of Uganda’s Citizenship and Immigration Control Act formerly inconsistent
with provisions of the Treaty and the Protocol were rendered inoperative and have
no force of law, as of the respective dates of entry into force of the Treaty and the
Protocol as law applicable in the Republic of Uganda.
Cases cited:
Attorney General of Uganda v Omar Awadh and 6 Others, EACJ Appeal No 2 of 2012.
Centre for Health Human Rights and Development and 3 others v the Attorney General,
Constitutional Petition No 16 of 2011(Uganda)
Commission of the European Communities v Kingdom of Spain, European Court of
Justice Case – 503/03
Costa vs Enel, European Court of Justice, ECJ Case 6/64
Katabazi case, Attorney General of the Republic of Rwanda v. Plaxeda Rugumba, EACJ
Plaxeda Rugumba v The Attorney General of Rwanda, EACJ Reference No 10 of 2010
Raducan & Anor -v- MJELR & Ors [2011] IEHC 224
State v Royer European Court of Justice, Case 48/75
Judgment
Introduction
1. The Reference dated 13th June, 2011, was brought under Articles 6(d), 7(2), 27,
30, 38 and 104 of the Treaty for the Establishment of the East African Community
(hereinafter referred to as “the Treaty”), Article 7 of the East African Common
Market Protocol (hereinafter referred to as “the Protocol”) and Rule 1(2) and 24 of
the East African Court of Justice Rules of Procedure (hereinafter referred to as “the
276
Rules”) and all enabling provisions of the law. (sic).
2. The Applicant, Mr Samwel Mukira Mohochi, is a citizen of the Republic of Kenya
and an Advocate of the High Court of Kenya. In this Reference he is also introduced
as “an accomplished human rights defender”. He is represented by two Counsel; Mr
Mbugua Mureithi wa Nyambura and Mr Donald Deya.
3. The Respondent is the Attorney General of the Republic of Uganda, who is the Chief
Legal Advisor to the Government of Uganda, and is being sued on behalf of the
Government of Uganda. Representing the Respondent is Ms Peruth Nshemereirwe,
State Counsel and Ms Maureen Ijang, State Attorney.
4. When this Reference was filed, the Secretary General of the East African Community
had been impleaded as the 2nd Respondent but after the filing, by a Notice of
Withdrawal filed in the Registry on the 4th October 2011, the Applicant withdrew
the Second Respondent from the Reference.
Background
5. The Applicant travelled to Uganda from Kenya on 13th April 2011 on a Kenya Airways
flight. He was part of a 14-member-delegation of the International Commission of
Jurists- Kenya Chapter (ICJ Kenya) scheduled to meet The Chief Justice of Uganda,
the Honourable Mr Justice Benjamin Odoki, on the 14th April 2011. The whole
delegation was on the same flight. On arrival at Entebbe International Airport, at
9.00am the Applicant was not allowed beyond the Immigration checkpoint in the
Airport.
What happened immediately thereafter is contested. The Applicant says he was
arrested, detained and confined by airport immigration authorities. Immigration
authorities maintain that that they handed him to Kenya Airways who took him into
their custody. What is uncontested is that he was subsequently served with a copy
of a “Notice to Return or Convey Prohibited Immigrant” addressed to the Manager,
Kenya Airways by the Principal Immigration Officer, Entebbe International Airport,
bearing his (the Applicant) names as the prohibited immigrant. It is also uncontested
that that same day, at 3.00 pm, he was put on a Nairobi bound Kenya Airways flight
and returned to Kenya. The immigration authorities did not inform him, verbally
or in writing, why he had been denied entry as well as why he had been declared
a prohibited immigrant and subsequently returned to Kenya. The immigration
authorities maintain that they owed him no such duty, under the law.
6. The Applicant contends that these actions were violations of his legal rights and
Uganda’s obligations under the Treaty, the Protocol and The African Charter on
Human and Peoples’ Rights (hereinafter referred to as “the Charter”), and has filed
this Reference seeking redress.
The Applicant’s Case

7. In the Reference the Applicant alleges that on arrival at Entebbe International
Airport, he was denied entry into the country, restrained, confined and detained at
the immigration offices at the airport and subsequently deported to Kenya.
8. The Applicant maintains that it was unlawful on the part of the Respondent not to
277
subject him to any legal or administrative process before the decisions of declaration
of status of prohibited immigrant, denial of entry and deportation back to Kenya
were taken. He contends that he had committed no immigration or criminal offence
against the laws of Uganda or the East African Community to warrant the denial of
entry into Uganda and deportation back to Kenya.
9. In the premises he asserts that the subject matter of this Reference is that the above
actions of the Republic of Uganda under the advice of the Respondent are:
i) in violation of Uganda’s obligations under Article 104 of the Treaty.
ii) in violation of the guarantees of free movement and non-discrimination of East
African citizens under Article 7 of the Protocol.
iii) illegal, unlawful and in violation of Uganda’s obligations under Articles 6(d) and
7(2) of the Treaty with regard, particularly, to the denial of the due process of law
or fair administrative process.
iv) in violation of the fundamental rights and freedoms of the Applicant against
discrimination, freedom from arbitrary arrest and detention, the right to a
fair and just administrative action, the right to information and freedoms of
assembly, association and movement guaranteed by Articles 2,6,7,9,10,11 and 12
of the Charter
v) and that the provisions of Section 52 (a), (b), (c), (d) and (g) of the [Uganda]
National Citizenship and Immigration Control Act (Chapter 66 of the Laws of
Uganda) bestowing unchecked and overarching discretionary powers to the
Minister and the Director of Immigration to unilaterally declare any person,
including a citizen of a Partner State of the East African Community, (EAC)
as a “Prohibited Immigrant”, without affording him or her a hearing, due
process of law or any formal administrative process, are inconsistent with and in
violation of Uganda’s obligations to respect, uphold and observe the rule of law,
transparency, accountability and human rights as well as fundamental freedoms
under Articles 6 (d), 7 (2) of the Treaty and the guarantee of free movement
within the East African Community under Article 104 of the Treaty and Article
7 of the Protocol.
10. The Applicant says that the Reference is premised on Articles 6(d), 7(2), 27,30,38
and 104 of the Treaty, Article 7 of the Protocol and Articles 2, 6, 7,9,11 and 12 of the
Charter. The Applicant prays for the following orders:-
i). A Declaration that the denial of the Applicant, a citizen of one of the Member
States of the East African Community, of entry into Uganda without according
him a hearing, due process of law or any legal or administrative process is illegal,
unlawful and a breach of Uganda’s obligations under Articles 6(d) and 7(2) of
the Treaty.
ii). A Declaration that the denial of the Applicant, a citizen of one of the Member
States of the East African Community, of entry into Uganda, without Treaty
based reasons, is illegal, unlawful and a breach of Uganda’s obligations under
Articles 104 of the Treaty and 7 of the Protocol.
iii). A Declaration that the stoppage, restraining, and detention of the Applicant
at Entebbe International Airport, denial of entry into Uganda and subsequent
deportation back to Kenya without disclosure of the reasons for the declaration
278
of status of prohibited immigrant, without due process of law or any form of
administrative process before the declaration of status of prohibited immigrant
and subsequent deportation are violations of the Applicant’s fundamental rights
and freedoms as to freedom from discrimination, freedom from arbitrary arrest
and detention, right to fair administrative action, right to information and
freedoms of association, assembly and movement contrary to the provisions of
Articles 2,6,7,9,10,11 and 12 of the Charter as recognised by Articles 6(d), and
7(2) of the Treaty.
iv). A Declaration that the provisions of Section 52 (a), (b), (c), (d) and (g) of
the Citizenship and Immigration Control, Chapter 66 of the Laws of Uganda,
bestowing unchecked and overarching discretionary powers on the Minister and
the Director of Immigration to unilaterally declare persons who are citizens of
Member States of the East African Community, such as the Applicant, the status
of prohibited immigrants, are inconsistent with and in violation of Uganda’s
obligations of observance of the imperatives of the rule of law, transparency,
accountability and human rights under Articles 6(d), 7(2), and the guarantee of
free movement and residence within the East African Community under Article
104 of the Treaty and Article 7 of the Protocol.
v). An Order that costs of and incidental to this Reference be met by the Respondent.
vi). That this Court be pleased to make such further or other orders as may be fit and
just in the circumstances of the Reference.
Respondent’s case
11. In a response supported by the Affidavit of one Okello Charles Cowards, a Principal
Immigration Officer, Entebbe International Airport, the Respondent admits that the
Applicant arrived at Entebbe International Airport as alleged and was indeed denied
entry into Uganda.
12. Save for the above admission, the Respondent denies that the Applicant was arrested,
restrained or detained by immigration authorities and states, instead, that the
Applicant was validly denied entry in accordance with Article 7 (5) of the Protocol,
that the Respondent was under no legal obligation to give the Applicant reasons for
the denial of entry and that the Applicant was handed over to Kenya Airways, with
instructions to take him into its custody and ensure that he is removed from the non-
permissible area and returned to Kenya on its first available flight.
13. The Respondent also denies that the actions of the immigration officers at the airport
on the material date and time contravened Articles 6(d), 7(2), and 104 of the Treaty,
Article 7 of the Protocol or violated Articles 2,6,7,9,10,11 and 12 of the Charter, and
contends that this Court does not have jurisdiction to enforce Articles 2, 6, 7,9,10, 11
and 12 of the Charter.
14. The Respondent further avers that Section 52 of the Uganda’s Citizenship and
Immigration Control Act is not in contravention of the Treaty or the Protocol, that
neither the Treaty nor the Protocol takes away the sovereignty of the member states
to make decisions in the best interest of their national security and, in response to
allegations that Section 52 of Uganda’s Immigration Act bestows unchecked and
overarching discretionary power to declare people, including East African Citizens,
279
prohibited immigrants, further avers that under Article 76(2) of the Protocol,
implementation of the Common Market shall be progressive.
15. The Respondent finally avers that, in the alternative and without prejudice to
prior averments, the action undertaken by the Government of Uganda to deny the
Applicant entry into Uganda was lawful, bonafide, justifiable and in the security
interest of the people of the East African Community.
16. The Respondent prays that the Reference be dismissed with costs.
17. At a Scheduling Conference held on 24 February 2012 it was agreed that the following
were the issues to be determined by the Court:
i) Whether the Reference is properly before the Court;
ii) Whether the Treaty and the Common Market Protocol take away the sovereignty
of Uganda to deny entry to unwanted persons who are citizens of Partner States
of the EAC;
iii) Whether the Applicant was detained at Entebbe International Airport and
whether the actions complained of, of the Republic of Uganda, were in conformity
with Articles 6 (d) and 7(2) of the Treaty;
iv) Whether the actions of the Republic of Uganda were in conformity with Article
104 of the EAC Treaty and Article 7 (6) of the Common Market Protocol;
v) Whether the Provisions of section 52 of the Uganda Citizenship and Immigration
Act are inconsistent and in violation of Articles 6 (d), 7 (2) and 104 of the Treat
and Article 7 of the Protocol;
vi) Whether the Applicant is entitled to the prayers sought.
Consideration and Determination of the Issues Whether the Reference is properly

before the Court
Submissions
18. The question as to whether this Reference is properly before the Court was a point
of law challenging the Court’s jurisdiction and was raised by the Respondent. It was
argued by Ms Maureen Ijang, the Respondent’s Counsel, who submitted that this
Court lacks jurisdiction to hear the Reference basically for two reasons:
i) that the Reference is mainly based on allegations of human rights violations and
that this Court lacks jurisdiction to try such violations by virtue of the “clear
provisions of Article 27 of the Treaty which expressly put allegations of human
rights violations in the Court’s extended jurisdiction which is not yet in place...”
(sic) It was her contention that “the intention of the framers of the Treaty was that
this Court would not interpret human rights matters until a protocol allowing
it to do so is concluded.” (sic) In support of this argument, Counsel referred us
to the case of James Katabazi & 21 Others v Attorney General of Uganda, EAC
Reference No. 1 of 2011 (The Katabazi case), as well as to that of the Attorney
General of Kenya v Independent Medical Legal Unit EACJ Appeal No. 1 of 2011
(the IMLU Case) in which the Appellate Division stated that for the Court to
claim and exercise jurisdiction in any matter, it has to find and supply, through
interpretation of the Treaty, the source and basis for such jurisdiction, in the
280
circumstances of the matter before it. Similarly Counsel submitted that to the
extent that the Applicant is alleging human rights violations by the Respondent
and seeking declarations that the actions of the Respondent violated “the human
rights provisions in the Treaty”,(sic) the Court should find and supply the basis
of its jurisdiction through interpretation of the Treaty and not simply by relying
on the Katabazi case.(supra)
ii) that Article 6 (d) of the Treaty, which the Applicant alleges was infringed by
the Respondent, consists of aspirations and broad policy provisions for the
Community which are futuristic and progressive in application and that it raises
political questions which cannot be answered by this Court. That the provision
is not capable of being breached and, therefore, it is not justiciable. In support
of her stance, Counsel cited the authority of a Ugandan case, Centre for Health
Human Rights and Development & 3 others versus The Attorney General of
Uganda, [Constitutional Petition No 16 of 2011], where the Constitutional Court
of Uganda declined to entertain a Petition premised on allegations that the
Government was not investing sufficiently in maternal health services with dire
consequences for women and children, because it was political in character and
concerned policy issues.
19. Mr Mbugua Mureithi argued the case for the Applicant. In answer to the issue of
want of jurisdiction, he asserted that the Reference was properly before the Court in
accordance with Article 30 (1) of the Treaty which provides that:
“Subject to the provisions of Article 27 of this Treaty, any person who is resident
unlawful or is an infringement of the provisions of this Treaty”.
20. He further submitted that in determining a matter in question under the above
Article, the Court is required to review the lawfulness of that matter and whether it
amounts to an infringement of the Treaty.
21. In response to the Respondent’s assertion that the cause of action in this Reference
is human rights violations, Counsel argued that while agreeing that the jurisdiction
of the Court is subject to the provisions of Article 27 of the Treaty, the crux of the
Applicant’s plea, as exhibited in the Reference, is that the actions complained of are
breaches of Uganda’s obligations under Articles 6(d), 7(2) and 104 of the Treaty
and Article 7 of the Protocol. It is on the basis of the foregoing, that the Applicant
is asking the Court to pronounce itself on the alleged breaches of the said Treaty
obligations by Uganda in light of his grievances.
22. Furthermore, relying on the authority of the Katabazi case (supra), Counsel
submitted that this Court’s jurisdiction is not ousted merely on the basis that the acts
complained of are based on allegations of human rights violations.
23. Finally, Counsel submitted that Article 7 of the Protocol creates subjective rights
to which citizens of the East African Community are entitled in their individual
capacities and those rights are enforceable vide the Court’s jurisdiction under
Articles 27 and 30(1) of the Treaty and it matters not whether those rights are said to
be “human rights” or rights by whatever lexicon.
281
24. In answer to the Respondent’s assertion that Articles 6 (d) and 7(2) of the Treaty
contained aspiration and broad policy provisions not capable of being breached
and therefore not justiciable, Counsel cited the IMLU Case (supra) as his authority
to show that the Articles create obligations that Partner States have voluntarily
entered into and that to breach them is a Treaty violation. To drive his point home,
Counsel pointed out that in the Applicant’s view, provisions of Article 6 (d) are,
in fact, foundational to the Community in that they are conditions precedent to a
foreign country being granted membership of the East African Community under
Article 3 clause 3 (b) of the Treaty. Counsel distinguished the authority cited by the
Respondent’s Counsel from the present Reference and submitted that whereas the
issues before Uganda’s Constitutional Court in that Petition were about provision
of sufficient maternal health services in the country, and that is why the Court
held that it was a matter of resource allocation which should be determined by the
Executive and other political organs of the State, the issues in the present case are
about crystallised provisions of Articles 6 and 7 of the Treaty which are foundational
and core to the continued existence of the Treaty.
We have considered the rival positions of the parties in support of their respective
positions on this matter and we opine as here under:
25. It is common ground that under Article 27 (1) of the Treaty, this Court has jurisdiction
over the interpretation and application of the Treaty, where such jurisdiction is not
conferred by the Treaty on organs of Partner States. We think this is plain enough.
This Court does have jurisdiction to interpret and apply any and all provisions of
the Treaty save those excepted by the proviso to Article 27. While we agree, with
the Respondent that the Court’s jurisdiction will be extended via a Protocol as
envisaged by Article 27 (2), we do not consider that the envisaged extension, in any
way, acts to prohibit the Court from interpreting and applying any provision of the
Treaty. In particular, this Court has consistently held, and the Appellate Division has
consistently upheld, that mere inclusion of allegations of human rights violations in
a Reference will not deter the Court from exercising its interpretation jurisdiction
under Article 27(1) of the Treaty- (see especially the Katabazi case, Attorney General
of the Republic of Rwanda v. Plaxeda Rugumba, Appeal No. 1 of 2012 and Attorney
General of Uganda v Omar Awadh and 6 Others, Appeal No 2 of 2012.)
26. We also need to reflect on the Respondent’s assertion that, in the present Reference,
the Applicant is alleging human rights violations as well as seeking declarations that
the actions of the Respondent violated the human rights provisions in the Treaty.
We hasten to make two points here:
27. First, that the Treaty is neither a Human Rights Convention nor a Human Rights
Treaty as understood in international law. It is rather a Treaty to govern the
widening and deepening of, inter alia, the political, economic, social, cultural,
research, technology, defence, security, legal and judicial cooperation between the
Partner States, see- Article 5 of the Treaty and Attorney General of Uganda v. Omar
Awadh(supra).
28. Secondly, we are not aware of a chapter, article or provision in the Treaty, Protocols
and Annexes which designates any provisions therein as “the human rights
provisions”. The Respondent merely referred to them but did not show us which
282
ones they are, where they are located and the evidence she relies on. Under Article 1:
“Treaty” means the Treaty establishing the East African Community and any annexes
and protocols thereto, and it is our view that provisions therein are provisions of the
Treaty, plain and simple. The object and scope of each provision is reflected in the
titles and sub-titles of the chapters and articles therein. For a litigant to unilaterally
sub-designate some Treaty provisions into human rights provisions, just to bring
them within the purview of the yet to be given jurisdiction under Article 27 (2) is
mischievous, to say the least.
29. In the instant matter, the Applicant’s allegations against the Respondent are that he
was denied entry, restrained, arrested, detained, declared a prohibited immigrant,
returned to Kenya, denied any legal or administrative process and was not furnished
with reasons for these actions. He alleges that these actions violate specific provisions
of the Treaty including Articles 104, 6(d), 7(2) and Article 7 of the Protocol. Where
he alleges violations of various provisions of the African Charter on Human and
Peoples’ Rights, he qualifies it with “as recognised by Article 6(d) and 7(2) of the
Treaty”. In effect, we understand the cause of action in his case to be the alleged
infringement of a Partner State’s Treaty obligations which we find to be a matter
which lies outside the province of human rights. -see Attorney General of Uganda v
Omar Awadh (supra).
30. What matters, in our view, is that the Application seeks that this Court determines
whether the actions and decisions of the Respondent were an infringement of specific
Treaty provisions. It is the interpretation and application of these provisions in order
to determine whether the impugned actions and decisions are infringements that
provides the jurisdiction of this Court under Article 27(1).
31. Consequently, we think the Applicant has passed the test established by the Appellate
Division of this Court in the IMLU Case (supra). It is not violations of human rights
under the Constitution and other laws of Uganda or of the international community
that is the cause of action in the Reference, rather the cause of action is constituted
by allegations of infringements of specific Treaty provisions by the Ugandan
Government. Applying the IMLU test to the present case, as the Respondent
urged us to do, we do find, indeed, that the Treaty provisions alleged to have been
violated have, through Uganda’s voluntary entry into the EAC Treaty, been scripted,
transformed and fossilised into several principles, obligations and treaty guarantees
now stipulated in, among others, Articles 6(d), 7(2), 104 of the Treaty and 7 of the
Protocol, breach of any of which by Uganda would give rise to infringement of the
Treaty. It is that alleged infringement which, through interpretation of the Treaty
under Article 27(1) constitutes the cause of action in the instant Reference, and
consequently, establishes the legal foundation of the jurisdiction of this Court in this
Reference.
32. The import of Article 27(2) became a point of contention in submissions and at the
hearing. Article 27 (2) is framed as follows:
“The Court shall have such other original, appellate, human rights and other
this end, the Partner States shall conclude a protocol to operationalise the extended
jurisdiction.”
283
33. Again a plain reading of the incremental language of the aforesaid provision would
be enough. The provision says that the Court shall have other jurisdiction at some
future time. We think that if the intention of the framers of the Treaty had been to
deny the Court any type of jurisdiction, as claimed by the Respondent, they would
have categorically and expressly provided so, in a prohibitive phrase, like “The Court
shall not have original, appellate, human rights jurisdiction and other jurisdiction....”
or words to precisely convey such intent. Indeed the framers used such a phrase
in Article 30(3). It is quite obvious to us that the import of the Article, as we have
said before, and do repeat here, is that the framers merely intended to extend,
progressively add to or widen the jurisdiction of the Court. In Plaxeda Rugumba
v.The Attorney General of Rwanda, Reference No 10 of 2010, we said, inter alia, that;
“there is no doubt that the use of the words, “...other original, appellate, human rights
and other jurisdiction....” is merely in addition to, and not in derogation to, existing
jurisdiction....”.
34. Clearly, the sub-article is intended to provide for the giving to this Court of other
jurisdiction, which Council will determine, at a suitable subsequent future date. It
does not in any way impinge on the Court’s jurisdiction, under Article 27 (1), to
interpret and apply any and all provisions of the Treaty.
35. The Respondent submitted that the provisions of Articles 6 (d) of the Treaty are
aspirations and broad policy provisions which are futuristic and progressive in
application and that they raise political questions which cannot be answered by this
Court. Further, that they are not capable of being breached and, therefore, are not
justiciable. We find this stance erroneous for the following reasons:
i) Article 6 provides the six Fundamental Principles of the Community. Black’s Law
Dictionary defines “Principle” as “a basic rule, law or doctrine”.(9th Edition at
p 1313) Our understanding of “Fundamental Principles” as used in this Article,
aided by the above definition, is that these are rules that must be followed or
adhered to by the Partner States in order that the objectives of the Community
are achieved.
Paragraph 11 of the Preamble to the Treaty provides that the Partner States are;
“Resolved to adhere themselves to the fundamental and operational principles that
will govern the achievement of the objectives...”
Article 146(1) of the Treaty provides, inter alia, that a Partner State may be suspended
from taking part in activities of the Community if that State fails to observe and fulfil
the fundamental principles and objectives of the Treaty.
Article 147(1) provides, inter alia, that a Partner State may be expelled from the
Community for gross and persistent violation of the principles and objectives of the
Treaty.
36. These provisions show that the framers of the Treaty, attached the greatest importance
to the fundamental principles, among very few other provisions. Why then, would
they attach to them such importance, including severe sanctions for non-observance
thereof, if they were, as the Respondent claims, no more than mere aspirations?
37. Fortified by the above provisions of the Treaty, we agree with the Applicant that these
principles are foundational, core and indispensable to the success of the integration
agenda, and were intended to be strictly observed. Partner States are not to merely
284
aspire to achieve their observance, they are to observe them as a matter of Treaty
obligation. In our view, all the six principles in the Article were each carefully thought
out, negotiated, appropriately weighted, individualized and crafted the way they are
for a particular effect. Integration depends on each of them singly and collectively.
38. The principle in Article 6(d), which was the main target of the Respondent’s attack,
is good governance. “Good governance” means many things in many contexts.
Wikipedia, the online Encyclopedia defines it in descriptive terms. We paraphrase it
thus:
“Good governance is an indeterminate term used in international development
literature to describe how public institutions conduct public affairs and manage
public resources. The concept “good governance” centres around the responsibility of
governments and governing bodies to meet the needs of the masses. Because the term
“good governance” can be focused on any one form of governance, organisations and
authorities will often focus the meaning of good governance to a set of requirements
that conform to the organisation’s agenda, making good governance imply many
different things in many different contexts.”
39. We fully associate ourselves with the above description and we are of the firm
belief that herein lies the explanation why the framers of the Treaty went beyond
stating the principle and instead negotiated and agreed upon a specific minimum
set of requirements that constituted the good governance package that, in their
wisdom, suited the EAC integration agenda. That package, for purposes of the EAC
integration, as set out in Article 6 (d), includes;
a) adherence to the principles of democracy,
b) the rule of law, accountability,
c) transparency,
d) social justice,
e) equal opportunities,
f) gender equality, as well as
g) the recognition, promotion and protection of human and peoples’ rights in
accordance with the provisions of the African Charter on Human and Peoples’
Rights.
40. Apart from asserting that the provisions are aspirations and broad policy provisions
for the Community, political in character and with a futuristic and progressive
application, Counsel did not substantiate. They did not explain how and why these
fundamental principles are mere aspirations. They failed to show us why we should
depart from the position of this Court succinctly stated in the IMLU Case(supra)
that these provisions constitute responsibilities of Partner States to citizens which,
through those States’ voluntary entry into the EAC, have crystallised into actionable
obligations, breach of which gives rise to infringement of the Treaty.
41. We examined the authority which Counsel told us she was fortified with. We found
that the Petitioners’ contention in that authority, Centre for Health Human Rights
and Development and 3 others Versus the Attorney General, Petition No 16 of 2011,
was that the State failed to provide basic indispensable health items in Government
facilities for expectant mothers and that as a result of this failure, together with the
imprudent and unethical behaviour of health workers, the maternal mortality rate in
Uganda was high.
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42. It is basically this contention that the Court considered and held, inter alia, that
the Executive has the political and legal responsibility to determine, formulate
and implement Government policy and that the Court has no power to determine
or enforce its jurisdiction on matters that require analysis of the health sector
government policies, make a review of some and later on, their implementation and
that, if it did that, it would be substituting its discretion for that of the executive
granted to it by law.
43. We failed to find the connection between the facts of the authority cited and the
present Reference, where the contention is whether a Partner State violated specific
It is clear to us that the provisions of Article 6 (d) of the Treaty are solemn and
serious governance obligations of immediate, constant and consistent conduct by
the Partner States. In our humble view, we know of no other provisions that embody
the sanctity of the integration process the way the above do.
In view of the foregoing, we find and hold that the Reference is properly before the
Court.
Whether the Treaty and the Common Market Protocol take away the sovereignty of
Uganda to deny entry to unwanted persons who are citizens of Partner States of the
EAC.
Submissions
44. Mr Mbugua Mureithi, for the Applicant, submitted on this issue as follows:
i) That neither the Treaty nor the Protocol takes away the sovereignty of the Republic
of Uganda to deny entry to unwanted persons who are citizens of Partner States
of the EAC. It is his contention however, that the exercise of sovereign power
by any EAC Partner State to deny entry to citizens of Partner States is heavily
qualified and, strictly governed by the Treaty and the Protocol.
ii) That under Article 104 of the Treaty, the Partner States undertook to guarantee
to all citizens of the EAC free movement of persons, labour and services and to
ensure their right of establishment and residence.
iii) That by Article 7 of the Protocol, the EAC Partner States guaranteed the free,
non-discriminatory movement of citizens of the Partner States within the EAC
countries without visas, and that the only limitation to the guarantee of free
movement of persons that a Partner State can lawfully impose are contained
in Article 7(5) of the Protocol and confined to matters of public policy, public
security and public health.
iv) That the right of EAC citizens to free movement within the Community is a
treaty-right guaranteed by Article 7 of the Protocol, and that Article 7 is in the
character of a directly applicable provision which confers upon the individual,
rights, and that national governments or their institutions cannot jeopardise,
delay or curtail their full, complete and uniform application in the Partner States
v) That under the Protocol, Uganda or any other Partner State of the EAC can limit
the guaranteed right of free movement of a citizen of any Partner State, such as
the Applicant, only pursuant to duly invoking the provisions of Article 7 (5) of
the Protocol and declaring or notifying the same to other Partner States and the
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EAC Secretary General in accordance with Article 8 (3) (c) of the Treaty and
Article 7 (6) of the Protocol. It is his contention that this is the only residual
sovereignty left to Partner States of the EAC within the EAC.
vi) That the unsubstantiated insinuation that the Applicant is a threat to the security
of the people of the EAC or a threat to the national interest of Uganda, not
having been notified to the EAC Secretary General and the Partner States in
accordance with Articles 8(3)(c) of the Treaty and 7(6) of the Protocol, remains
a unilateral action that cannot prevail over the Applicant’s guaranteed right of
free movement within the EAC.
45. Ms Peruth Nshemereirwe, for the Respondent, argued issues ii and iv together.
In a nutshell, she submitted as follows:
i) That neither the Treaty nor the Protocol takes away the Sovereignty of the
Republic of Uganda to deny entry to unwanted persons who are citizens of the
EAC.
ii) That sovereignty is the supreme political authority of an independent state and,
as such, Uganda is an independent state whose sovereignty was not submerged
in the creation of the EAC
iii) That Article 104 of the Treaty is subject to the provisions of the Protocol and
Article 7(5) thereof gives Uganda a right to restrict movement of persons into
Uganda on grounds of public policy, public security or public health and that
according to affidavit evidence tendered, the Applicant was denied entry into
Uganda under Article 7 (5) of the Protocol.
iv) That the Applicant’s argument that Uganda has not complied with the provisions
of Article 7(6) to notify the Secretary General of the EAC and The Republic of
Kenya about the Applicant’s denial of entry is a mere allegation for which the
Applicant showed no evidence of non-compliance.
v) That Article 7 (3) of the Protocol provides for compliance with national laws in
guaranteeing the protection of citizens, Article 7 (9) provides that implementation
of the Protocol shall be in accordance to the EACM (Free Movement of Persons)
Regulations specified in ANNEX 1 to the Protocol. That Article 5 (1) of those
Regulations provides that a citizen who wishes to enter or exit the territory of
another Partner State shall do so at entry or exit points designated in accordance
with national laws of the Partner State and shall comply with the established
immigration procedures. It was her contention that the key point in the above
provisions is “in accordance with national laws” and is in consonance with the
concept of sovereignty.
vi) That affidavit evidence on record showed that the national law which was relied
on in handling the Applicant was the Uganda Citizenship and Immigration
Control Act, Cap 66, and that vide paragraphs 4 and 5 of the affidavit of Charles
Okello Cowards, the Applicant was handled in accordance with the law and he
was neither confined nor detained as alleged.
vii) That under the above said Ugandan law, immigration officers are empowered
under its Section 52, to deny the Applicant or any other person entry into Uganda
and are not under any obligation to give reasons. She contended, therefore, that
the Applicant was clearly dealt with and denied entry in accordance with national
law.
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viii) That the cited regulations on free movement of persons under the Protocol
are part of the EAC Treaty under Article 151 thereof, that the actions of the
Respondent were in conformity with Articles 104 and 7(5) of the Treaty and
Protocol respectively, and that, flowing from that, she contended, there was no
contravention and or breach of the Treaty.
46. We have carefully considered the rival submissions. We entirely agree, as we think
both parties do, that Uganda is an independent sovereign state whose power to deny
entry to unwanted persons who are citizens of EAC Partner States was not submerged
with the coming into force of the Treaty and the Protocol, but still exists, so long it is
exercised in accordance with the requirements of the law. Indeed it was the stance of
Counsel for the Respondent that, in the exercise of her sovereignty Uganda denied
the entry to the Applicant in accordance with Article 7(5) of the Protocol.
47. What we find to be in contention in the instant Reference, however, are two things
namely; the extent of Uganda’s sovereignty, given the provisions of Sections 52 and
66(4) of Uganda’s Citizenship and Immigration Control Act, Articles 104 and 7 of
the Treaty and Protocol respectively, and the application of those provisions in the
matter of the Applicant.
48. Article 104 (1) of the Treaty provides that;
“The Partner States agree to adopt measures to achieve the free movement of persons,
labour and services and to ensure the enjoyment of the right of establishment and
residence of their citizens within the community.”
It provides, in 104 (2) that;
“For purposes of this Article, the Partner States agree to conclude a Protocol on
the Free Movement of Persons, Labour, Services, and Right of Establishment and
Residence at a time to be determined by the Council.” That was November 30th
1999.
49. On 20th November 2009, the Protocol envisaged in 104 (2) came into force. The
object of its Article 7 is “Free Movement of Persons”. The Article then provides as
under;
“7 (1) The Partner States hereby guarantee the free movement of persons who are
citizens of other Partner States within their territories.
7(2) In accordance with paragraph 1, each Partner State shall ensure non-
discrimination of the citizens of the other Partner State based on their nationalities
by ensuring:
a) the entry of citizens of other Partner States into the territory of the Partner State
without a visa
b) the free movement of persons who are citizens of the other Partner State within
the territory of the Partner State
c) that the citizens of the other Partner States are allowed to stay in the territory of
the Partner State, and
d) that the citizens of the other Partner States are allowed to exit the territory of the
Partner State without restrictions.
7 (5) The free movement of persons shall be subject to limitations imposed by the
host Partner State on grounds of public policy, public security or public health.
7(6) A Partner State imposing limitation under paragraph 5, shall notify the other
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Partner States accordingly
7(9) The implementation of this Article shall be in accordance with the East African
Community Common Market (Free Movement of Persons) Regulations,
specified in Annex 1 to this Protocol.”
50. We find it pertinent to refer to the two following Regulations:
Regulation 2: The purpose of these Regulations is to implement the provisions of
Article 7 of the Protocol and to ensure that there is uniformity among the Partner
States in the implementation of the Article and that to the extent possible, the process
is transparent, accountable, fair, predictable and consistent with the provisions of
the Protocol.
Regulation 5 (1): A citizen of a Partner State who seeks to enter or exit the territory
of another Partner State, shall do so at entry or exit points designated in accordance
with the national laws of the Partner State and shall comply with the established
immigration procedures.
51. Counsel for the Respondent submitted that Uganda is an independent state and its
sovereignty was not submerged with the creation of the East African Community.
We believe that Counsel was referring to Uganda’s internal sovereignty ie the power
enjoyed by the governmental entity of a sovereign state, including affairs within its
own territory and powers related to the exercise of external authority- see Black’s Law
Dictionary, 9th Ed. at p.1524. And by “power” in this context we take the definition
again, in Black’s Law Dictionary (supra) at p.1288, as “the legal right or authorisation
to act or not to act.”.
52. Our view is that, like every other country, Uganda’s sovereignty is defined by law.
Prior to the entry into force of the Treaty and, subsequently, the Protocol, Uganda’s
sovereignty to deny entry to unwanted persons was defined by The Citizenship and
Immigration Control Act, Chapter 66, Laws of Uganda. The Treaty then came into
force.
53. The Republic of Uganda, gave the Treaty the force of law pursuant to Section 3(1) of
the East African Community Act, 2002. The Section provides that:
“The Treaty as set out in the Schedule to this Act shall have force of Law in Uganda.”
The above Act defines the Treaty as:
“The Treaty for the Establishment of the East African Community dated 30th
November 1999, and entered into by the United Republic of Tanzania, The Republic
of Uganda, and the Republic of Kenya which is set out in the Schedule to this Act,
and as from time to time amended under any provision of the Treaty or otherwise
modified”-see Section 2 of the Act. The Common Market Protocol came into force
on the 20th November 2009- see Article 55, Common Market Protocol.
Article 151 (4) of the Treaty then specifically provides that:
“The Annexes and Protocols to this Treaty shall form an integral part of this Treaty.”
54. The above chronology shows that the Treaty is law applicable in, binding to and in
Uganda. It shows, as well, that the Protocol, as of its entry into force, constitutes a
modification to and is an integral part of the Treaty. The Treaty created the East
African Community, a legal entity comprising of the Partner States. Of particular
interest, is the fact that the meaning of foreign country under the Treaty is “...any
country other than a Partner State”.(see: Article 1 of the Treaty) The Treaty also
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defines persons, formerly foreign nationals as between the individual EAC states prior
to entry into force of the Treaty, as nationals or citizens of Partner States,(see: Article
1 of the Protocol) The Treaty accorded these persons wide ranging, preferential and
superior treatment and rights in terms of movement, establishment, residence and
working within the Partner States. With specific regard to the Republic of Uganda,
her sovereignty regarding the movement of the citizens of partner states in and out
of the Partner States started to be defined and governed by the Treaty, the Protocol
and the Citizenship and Immigration Control Act, provisions of the former taking
precedence in case of conflict.
55. We would hope that the foregoing brief chronicle of the growth of community law
and its direct applicability in the Partner States is helpful to the parties. We certainly
recognize that in exercise of her sovereignty, the Republic of Uganda has power to
admit persons on, or deny them entry into, her territory, in accordance with the
country’s law. The law in Uganda, however, includes the Treaty and the Protocol
which, also in the exercise of her sovereign power, the Republic of Uganda accepted
not only to be bound by, as Community law, but equally as national law.
56. Like in any other Partner State, once the Treaty and, subsequently, the Protocol,
were given force of law within Uganda, they became directly enforceable within
the country and took precedence over national law that was in conflict with them.
Existing legal provisions became qualified and started to be applicable only to the
extent that they were consistent with the Treaty and the Protocol. These included
provisions in Uganda’s Citizenship and Immigration Control Act.
57. The provisions, relevant to the present Reference, that affected the existing law are:
i) Article 104 of the Treaty by which Uganda agreed to adopt measures to achieve
the free movement of persons.
ii) Article 7 (2) of the Treaty by which Partner States undertake to abide by principles
of good governance including adherence to the principles of democracy, the rule
of law, social justice and the maintenance of universally accepted standards of
human rights.
iii) Article 7 of the Protocol by which Uganda guaranteed free movement of persons
who are citizens of the other Partner States within her territory
iv) Article 7(2) of the Protocol by which Uganda bound itself to ensure non-
discrimination of the citizens of the other Partner States by ensuring their entry
without a visa, their free movement within its territory, their stay and their exit
without restrictions.
v) Article 7(5) by which, in respect of citizens of Partner States, Uganda can impose
limitations on the free movement of persons only on grounds of public policy,
public security and public health.
vi) Article 7(6) by which Uganda must notify the other Partner States if it should
impose limitations under Article 7(5).
vii) Article 54(2) of the Protocol, by which Partner States guarantee that persons
whose rights and liberties as recognised by the Protocol shall have been infringed
upon, shall have a right to redress, even when the infringement has been
committed by persons acting in their official capacities; and that the competent
judicial, administrative or legislative authority or any other competent authority
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shall rule on the rights of the person who is seeking redress.
58. The import of these provisions is that by accepting to be bound by them, with no
reservations, Uganda also accepted that her sovereignty to deny entry to persons,
who are citizens of the Partner States, becomes qualified and governed by the same
and, therefore, could no longer apply domestic legislation in ways that make its
effects prevail over those of Community law.
59. Sovereignty, therefore, cannot not take away the precedence of Community law,
cannot stand as a defence or justification for non compliance with Treaty obligations
and neither can it act to exempt, impede or restrain Uganda from ensuring that her
actions and laws are in conformity with requirements of the Treaty or the Protocol.
60. We are of the view, therefore, that while Uganda can declare a citizen of a Partner
State a prohibited immigrant and deny him/her entry, it is clear from the foregoing
that such declaration or denial of entry can only be valid if it complies with the
requirements of Articles 104 and 7(2) of the Treaty and 7 and 54(2) of the Protocol.
61. Our interpretation is further fortified by the holding of the ECJ in the case of Costa
vs Enel, Case 6/64, where the Court, while interpreting a provision similar to Article
8(4), held, inter alia, that:
“The transfer by the States, from their domestic legal system to the Community
legal system, of the rights and obligations arising under the Treaty carries with it a
permanent limitation of their sovereign rights, against which a subsequent unilateral
act incompatible with the concept of the Community cannot prevail....”
62. In answer, therefore, to the issue under consideration, it is our finding that Uganda’s
sovereignty to deny entry to persons who are citizens of Partner States was not taken
away by the Treaty and the Protocol, but the exercise thereof can only be valid if it
is done in strict compliance with the requirements of Articles 104 and of the Treaty
and Articles 7 and 54(2) of the Protocol. Where Uganda fails, refuses, ignores or
otherwise does not comply with the above provisions of the Treaty and the Protocol,
it acts in violation of her Treaty obligations.
Whether the Applicant was detained at Entebbe International Airport and whether
actions of the Republic of Uganda were in conformity with Articles 6 (d) and 7(2) of
the Treaty;
Submissions:
Mr. Mbugua Mureithi, for the Applicant, submitted on this issue in two parts:-
63. On whether the Applicant was detained at Entebbe International Airport he
submitted that on 13.04.2011 the Applicant arrived at the Airport, was denied entry
into Uganda, was restrained, confined and detained in the offices of the Uganda
Immigration Department at the airport from 9.00 am to 3.00 pm when he boarded a
Kenya Airways flight back to Kenya.
64. He further submitted that the Notice signed by the Principal Immigration Officer,
Entebbe International Airport, directed Kenya Airways to “return or convey” the
Applicant, as a prohibited immigrant and, pending such conveyance, remove him
from the non permissible area.
Additionally, Counsel contended that the Respondent admitted that the Applicant
was put on the next available flight to Nairobi which was at 3.00pm. Counsel argued
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that these circumstances showed that on 13.04.2011 between 9.00am to 3.00pm the
Applicant was not a freeman, he was restricted and confined in custody, away from
the non permissible area at the Entebbe Airport, pending conveyance to Kenya, on
the orders of the Principal Immigration Officer at the Airport.
65. Counsel referred the Court to the definition of the verb “detain” in the Advanced
Learners Dictionary as “1 to keep somebody in an official place eg a police station....2.
to prevent somebody from leaving or doing something....”
66. Counsel further submitted that since the Applicant’s detention was pursuant to the
orders of the Principal Immigration Officer, it is the Respondent who is liable for the
detention.
67. Counsel urged the Court to take judicial notice that airlines within EAC do not
have security officers or places of holding persons in custody, adding that it would
be improbable that the Ugandan authorities would have left the Applicant to the
physical custody of an airline after labelling him a threat to the security of the peoples
of the East African Community.
68. Concluding his submissions on the first part, the Counsel contended that on the
balance of probabilities he had proved that the Applicant was restrained, confined
and detained at Entebbe International Airport on the orders of the Principal
Immigration Officer.
69. On whether the actions complained of were in conformity with Articles 6(d) and
7(2) of the Treaty, Counsel submitted that the Respondent’s confirmation that the
Applicant was denied entry and orders issued to return him to Kenya as a prohibited
immigrant, exhibited that he had been declared a prohibited immigrant. He submitted
further that he had shown that the Applicant was not given any reasons for any
of the adverse actions taken against him and that the Respondent’s confirmation,
in replying affidavits, that immigration officials were under no obligation to give
reasons to the Applicant, confirm that he was not informed why adverse actions were
taken against him.
70. It was Counsel’s further submission that in light of the Applicant’s guaranteed right
of free movement within the EAC under the Treaty and the Protocol, and his right of
redress under Article 54(2) of the Protocol, the Respondent was obliged to accord him
natural justice through a legal process that adhered to the rule of law, accountability,
transparency and protection of human rights in accordance with Articles 6(d) and
7(2) of the Treaty.
71. Counsel disputed the Respondent’s assertion that the process that the Applicant went
through by filling in a card, lining up and waiting to present his travel documents
to the immigration control officials at Entebbe Airport, amounts to a legal and
administrative process. He contended that this process does not qualify as a hearing
as known to the law and natural justice. Counsel further contended, that the reason
the Respondent gave for denying the Applicant entry, i.e. that it was in the security
interests of the people of East Africa, is a matter that cannot rest with an immigration
official at the airport counter as the competent authority to determine after filing in
a card, lining up and waiting to present travel documents.
72. Finally, Counsel submitted that since the Applicant had been to Uganda on other
occasions immediately preceding the denial of entry on 13.04,2011, then the burden
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on Uganda to show compliance with the provisions of Articles 6(d), 7(2) and 8(3) of
the Treaty and Articles 7(5), 7(6) and 54(2) of the Protocol, is that much higher.
73. In a spirited rebuttal, Ms Nshemereirwe, for the Respondent, denied that the
Applicant was detained by the immigration authorities. She submitted that the
Applicant was simply handed over to the carrier which had delivered him at the
airport to return him wherever he had come from.
74. She submitted further, that since the next Kenya Airways flight was to depart at
3.00pm, it was only logical that Kenya Airways had to place the Applicant somewhere
awaiting the next flight. It was Counsel’s submission that at that point the Applicant
was no longer in the hands of the Respondent and the Respondent was neither
responsible nor privy to how the Applicant was kept or taken out of the country. She
asserted that the Respondent’s only interest was to see the Applicant out of the non-
permissible area of the Airport.
75. On whether the actions complained of were in conformity with Articles 6(d) and
7(2) of the Treaty, Counsel submitted that the Applicant was accorded due process
in accordance with the Uganda Citizenship and Immigration Control Act. She
contended that the discussion the Applicant had with immigration officials before
he was informed that he could not be admitted into Uganda, the process of filling
in an entry card, taking of finger prints and picture amounted to an administrative
process which the Applicant underwent before he was found unworthy of entry into
Uganda.
76. We have carefully considered the arguments of both Counsel, examined the law on
the subject and we will examine the issues starting with whether the actions of the
Republic of Uganda complained of were in conformity with Articles 6(d) and 7(2) of
the Treaty. We will examine each action.
Denial of Entry
77. As shown above, Counsel for the Respondent maintained that the Applicant was
handled according to the law and was accorded the full benefit of due process.
However, on analysing the whole chain of actions complained of and how they
happened, with profound respect, we do not agree with the reasoning of Counsel for
the Respondent.
78. “Due process”, according to Black’s Law Dictionary (supra) at p.575 is defined as
“The conduct of legal proceedings according to established rules and principles for
the protection of private rights, including notice and the right to a fair hearing before
a tribunal with the power to decide the case”. We adopt this definition.
79. The process that Counsel claimed amounted to due process i.e. filling an immigration
card, taking finger prints and pictures and “a discussion” with the desk officer before
being found unworthy to enter Uganda, is at variance with the above definition.
The Respondent did not show us that the immigration officials had anything against
the Applicant. We were not shown that he was informed of any wrong they were
holding against him. His treatment seems to have been a result of caprice rather
than coherently thought out decisions. We agonised over the Respondent’s failure
to disclose, even in Court, what it was the immigration officials had against him that
warranted the harsh treatment.
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80. The Applicant’s right to redress was guaranteed by Article 54 of the Protocol. The
Article provides that:
i) in accordance with their Constitutions, national laws and administrative procedures
and with the provisions of this Protocol, Partner States guarantee that:
a) any person whose rights and liberties as recognized by this Protocol have been
infringed upon, shall have the right to redress, even where this infringement has
been committed by persons acting in their official capacities; and
b) the competent judicial, administrative or legislative authority or any other competent
authority, shall rule on the rights of the person who is seeking redress.
81. Discussing the import of a similar provision the European Court of Justice in State v
Royer Case 48/75, held that:
“a decision ordering the deportation of a Community alien may not be carried
out, save in cases of urgency which have been properly justified, against a person
protected by Community law until the latter has been able to exhaust the remedies
guaranteed by Articles 8 and 9 of Directive 64/221”.
82. The combined effect of this very persuasive authority and the import of Article
54 of the Protocol, reproduced above, regarding the instant Reference is that the
immigration officials had, foremost, an obligation to strictly apply the limitations
of the freedom of movement, given its importance to the East African Community
Common Market in particular, and integration in general. Failing this, once they
decided to infringe upon the Applicant’s rights and liberties as recognised by the
Protocol, they ought to have guaranteed his right to redress. This entailed, in our
view, a duty to give the Applicant sufficient reasons for denying him entry, declaring
him a prohibited immigrant and removing him from Uganda.
83. Equally importantly, they had a duty to afford him a fair opportunity to be heard,
and, as they made their decisions about him, to take into consideration whatever
he had to say. These, in our view, are basic indicators of due process, are the hall
marks of the rule of law and they distinguish a potentially just and fair process from
a potentially unjust and unfair one. Worthy of underscoring also is the fact that the
Applicant was owed these things not as favours from anyone but as hallowed rights
guaranteed by the Treaty. The provisions of its own national law, even if they existed,
could not exempt the Republic of Uganda from this Community law obligation.
84. What the Applicant proved, and the Respondent failed to disprove, is that he was not
aware, and he was not informed, of any offence he had committed or was suspected
of having committed, against any law of Uganda or against the Treaty. To us this
also is basic. Whatever else Counsel claimed to be due process was but a mockery of
the same if it could enable the Immigration to bundle up a citizen of a Partner State,
and dispatch him out of the country unheard.
85. In Court we expected Counsel to show us what exactly it was that the Applicant was
suspected of and/or charged with and needed due process for in the first place. To
our dismay, nothing was shown, despite our prodding.
86. The Applicant is a citizen of a Partner State and, as shown elsewhere above, is a special
creature of and protected under the Treaty. The Republic of Uganda is voluntarily
and irrevocably bound by the Treaty.
The Applicant’s freedom of movement within Uganda was a right guaranteed by the
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Treaty, specifically Articles 104 and 7 of the Treaty and the Protocol respectively.
Article 7(1) of the Protocol provides that;
“The Partner States hereby guarantee the free movement of persons who are citizens
of other Partner States within their territories”.
87. Those rights could not be interfered with, save as provided by the Treaty. In other
words, the provisions of Uganda’s Immigration and Citizenship Control Act (supra),
that Counsel told us were applied, could only apply to the Applicant only to the
extent that they complied with the Treaty.
Alleged Discrimination
88. The Applicant claimed to have been discriminated against. The guarantee of non-
discrimination is a clear provision of Article 7(2) of the Protocol. It provides that:
7(2) In accordance with paragraph 1, each Partner State shall ensure non-
discrimination of the citizens of the other Partner State based on their nationalities
by ensuring:
a. the entry of citizens of other Partner States into the territory of the Partner State
without a visa.
b. the free movement of persons who are citizens of the other Partner State within
the territory of the Partner State.
c. that the citizens of the other Partner States are allowed to stay in the territory of
the Partner State, and
d. that the citizens of the other Partner States are allowed to exit the territory of the
Partner State without restrictions.
89. The Applicant was part of a 14 member delegation, on schedule to meet the
Honourable Chief Justice of Uganda. It is evident from the visas in his passport that
he had visited Uganda on at least three occasions between 01.02.2011 and 13.4.2011.
It is amply clear, therefore, that he was not a stranger in Uganda. He was the only
member of the delegation who received adverse treatment. Short of a reasonable
explanation of this treatment by the Respondent, this failure to treat him equally
with the other members of the same delegation, would amount to discrimination.
The Respondent, in our view, failed to explain it.
90. We have discussed the import of Articles 6(d) and 7(2) of the Treaty at length elsewhere
in this judgment, and we reiterate that position here. The Applicant travelled to a
Partner State that is bound by the principles of good governance enshrined in Article
6(d), and had a legitimate expectation of being treated in accordance therewith. We
find, however, that the treatment he was subjected to was adverse and discriminatory.
91. That he was singled out of a delegation, declared a prohibited immigrant, denied
entry, returned to Kenya, without being furnished with reasons why and without
being heard in his defence was clearly at variance with and in violation of Uganda’s
obligation to adhere to the rule of law, accountability, transparency as well as the
recognition and protection of human rights in accordance with the Charter, as
provided under Articles 6(d) and 7(2) of the Treaty and 7(2) of the Protocol.
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Declaration of Prohibited Immigrant

92. In the Reference the Applicant alleges that save for a copy of the “Notice to Return
or Convey Prohibited Immigrant”, he was not furnished with any reasons, written or
verbal why he was declared a prohibited immigrant. At paragraph 4 of his affidavit
evidence, Mr Charles Okello Cowards, the Principal Immigration Officer, avers,
inter alia, that he knows that under S.52 of the Uganda Citizenship and Immigration
Control Act, Cap 66, Immigration officers are not under the obligation to give
reasons for such actions. At the hearing Counsel for the Respondent told Court that
the Applicant was handled under S.52 of Cap 66.
93. Section 52 describes who prohibited immigrants are and provides twelve categories
of them. We will reproduce the Section verbatim:
“The following persons are prohibited immigrants and their entry into or presence
within Uganda is unlawful except in accordance with the provisions of this Act:-
a. a destitute person
b. any person who:-
i) refuses to submit to medical examination after having been required to do so
under section 50;
ii. is certified, by a Government medical practitioner, to be suffering from a
contagious or infectious disease which makes his or her presence dangerous
to the community
c. any person against whom there is in force an order of deportation from Uganda
made under this Act or any other law for the time being in force;
d. any person whose presence or entry into Uganda is, or at the time of his or her
entry was, unlawful under this Act or any other law for the time being in force;
e. any person who has not in his possession a valid passport issued to that person
by or on behalf of the Government of the State of which he or she is a subject
or citizen or a valid passport or document of identity issued to him or her by
an authority recognised by the Government, such document being complete
and having endorsed on it all particulars, endorsements and visas required from
time to time by the Government or authority issuing that document and by the
Government;
f. any person who is a drug trafficker and who is living, or who prior to entering
Uganda was living, on the earnings of drugs or drug trafficking or trade;
g. a person who as a consequence of information received from the Government
of any State, or any other source considered reliable by the Minister or the
Commissioner, is declared by the Minister or by the commissioner to be an
undesirable immigrant; but every declaration of the commissioner under this
paragraph shall be subject to confirmation or otherwise by the Minister;
h. any person who, not having received a free pardon, has been convicted in any
country, for murder, or any offence for which a sentence of imprisonment has
been passed for any term, and who by reason of the circumstances connected
with the offence is declared by the Minister to be an undesirable immigrant;
except that this paragraph shall not apply to offences of a political character not
involving moral turpitude;
i. any person who is a subject or citizen of any country with which Uganda is at
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war;
j. the children, if under eighteen years of age and dependants of a prohibited
immigrant, and any other dependent of a prohibited immigrant; and
k. any person convicted of any offence under this Act.
94. A good faith and plain reading of the aforesaid Section shows that, from (a) through
(k), for any person to be declared a prohibited immigrant under any of the twelve
categories, there is a formal technical process by which it is ascertained that certain
conditions exist and, once ascertained, then the decision to declare him such
prohibited immigrant or not is made.
95. Secondly, while a person can be declared a prohibited immigrant under one or more
clearly ascertained categories, our reading of the Section indicates that it would be
impossible for a person to be declared a prohibited immigrant pursuant to the whole
blanket Section 52. From the foregoing, it would seem to us that the Applicant could
not have possibly been declared a prohibited immigrant under the whole of Section
52, without reference to any of the twelve categories.
96. At the hearing Counsel were asked what part of Section 52 the Applicant offended
for him to be declared a prohibited immigrant. Ms Ijang replied that it was Section
52(d). When she was told that the Notice to Convey Prohibited Immigrant
contained no reference to Section 52, she shifted to Section 66(4). At that point, Ms
Nshemereirwe came to her colleague’s aid and told the Court that they were relying
on, and we should, as well, on the affidavit evidence of the Principal Immigration
Officer, specifically the averment that under Section 52, Immigration Officers were
under no obligation to give reasons.
97. Our consideration of this evidence and submissions posed a number of problems.
In the first place this was now a court of law, not an immigration desk. While it may
be that the immigration officials believed, albeit mistakenly, that they were under no
obligation to give the Applicant reasons for denying him entry, we are convinced
that, as an administrative authority, at an international airport, in this day and age,
they had an obligation, to have a record of, or, at the very least, to know those reasons
and, consequently, we would have expected them to disclose them in the Court. The
law, this time, put them under obligation to disclose. The Rules of this Court permit
the conduct of proceedings in camera, for sufficient cause. In spite of demands and
prodding, Counsel did not disclose any reasons. We formed the opinion that there
were none.
98. Secondly, much as we perused and combed through Section 52, (and this is why we
reproduced it verbatim) we did not find any provision that empowers Immigration
Officers in Uganda not to give reasons to persons whom they deem to be prohibited
immigrants and/or deny entry into the country. We found no provision that
prohibits them from doing so or penalises them for doing so. On the contrary, we
found that the Section shows that none of the processes leading up to a decision that
one is or is not a prohibited immigrant under any of the categories, can be concluded
without informing the immigrant of the reasons and hearing him in his defence or in
explanation.
99. Thirdly, even if that power existed under Section 52, the Immigration authorities
knew or ought to have known that by Uganda’s accession to and domestication of the
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Treaty and Protocol, that power would be strictly qualified and limited by Articles
104 and 7(2) of the Treaty and 7 and 54(2) of the Protocol. In other words, they were
duty bound to treat the Applicant in accordance with those provisions, and not to do
so amounted to violation of his rights and Uganda’s obligations there under.
100. Finally, in spite of paying close attention to the Respondent’s evidence and
submissions, we were unable to ascertain whether the Applicant was ever declared
a prohibited immigrant, by what procedure and at what point. The only document
that was issued was the Notice to Return or Convey Prohibited Immigrant. It was
issued under Section 66(4) of the Citizenship and Immigration Control Act.
The Section provides as under:
“Where a prohibited immigrant enters Uganda from a ship or vehicle, whether or
not with knowledge of the owner, agent or person in charge of it, the agent or person
in charge commits an offence and is liable on conviction, to a fine not exceeding one
hundred currency points; and provision shall be made by the owner, agent or person
in charge, as the case may be, to the satisfaction of an immigration officer for the
conveyance out of Uganda of the prohibited immigrant”.
The Notice was issued to Kenya Airways, not to the Applicant.
101. The Section penalises the owner or agent of a ship or vessel that brings a
prohibited immigrant into Uganda. We were not told whether the Applicant could
have been a prohibited immigrant before starting his journey to Uganda or he was
declared a prohibited immigrant on arrival. All we could see was Kenya Airways
being condemned to removal, from Uganda, of a prohibited immigrant they had
brought into the country but nowhere were we shown how, why, when, and by
whom he was so declared. We were not shown whether the declaration was oral or it
was documented. The Notice, in our view, was not just irregular, it was unknown to
Ugandan law.
102. The foregoing leaves us with four conclusions: Firstly, that the Applicant was
not a prohibited immigrant, under the law, because there is no evidence that he was
declared so. Secondly, that Immigration Authorities merely labelled him a prohibited
immigrant so as to deny him entry. Thirdly, that the Notice was issued in order to
corner Kenya Airways into returning him to Kenya and, finally, that the Immigration
Authorities resorted to kangaroo methods for want of a lawful procedure by which
to swiftly return the Applicant to Kenya.
103. Paragraph 13 of the affidavit evidence of Charles Okello Cowards stated that
Uganda’s action to deny the Applicant entry was lawful, bonafide, justifiable and in
the security interests of the people of East Africa. We found this to be an important
area to consider. Counsel for the Respondent, however, made it anything but easy
for us. Beyond the averment we were told/shown nothing else. It would have been
immensely helpful for the Court to hear and evaluate what security interests of the
people of East Africa the immigration officials considered and how the Applicant’s
entry into Uganda would put those interests at risk or how his denial of entry did
preserve or protect them. We were not told anything. We dismissed the averment as
lacking in value.
104. Counsel for the Respondent, in submissions, asserted that the Court should
consider the circumstances during the wind of terrorism (sic) and affirm the Ugandan
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position to deny the Applicant entry into Uganda. Counsel, however, trod carefully
and avoided any direct allegation, from the bar, against the Applicant in relation to
that wind of terrorism.
105. We find it pertinent to point out here that, at no point, throughout the Applicant’s
ordeal was such or any allegation of wrongdoing levelled against him. Again, without
substantiation, we were of opinion that the assertion was of no ascertainable value.
We think that if the Respondent had evidence of wrong doing against the Applicant
he would have been prosecuted in Uganda. This Reference was another crucial
opportunity to come clean. The documentary evidence he produced to show that
he is an Advocate of the High Court of Kenya and also a human rights activist and,
therefore, a law abiding citizen of a Partner State, were not challenged.
106. Curiously while the Principal Immigration Officer averred in his affidavit that
the Applicant was denied entry in the security interest of East African citizens,
the way they handled him pointed in the direction of an individual known to be
harmless to the Region. Indeed, we wonder why a person known or suspected to be
a risk to Regional security would, once found in one Partner State, not be arrested
and charged but just be left to await the next flight to return him to another Partner
State, and, once there, remain at large.
107. We entirely understand the terror attacks referred to and we condemn them in
the strongest of terms. But even then, for Uganda to take out the consequences of
that tense situation on the Applicant the minimum we would expect was evidence
that he was a suspect or was in some way connected. Surprisingly the Respondent did
not even attempt to allege anything against him in that regard.
108. From evaluation of the evidence, it does not seem to us that the Applicant was a
threat or would have failed to explain his presence in or wish to enter Uganda, given
the chance, but his fate was sealed the moment the Immigration authorities chose to
interpret Section 52 as not obliging them to inform him of any reasons or to hear his
side of the story.
Alleged Detention
109. The Applicant alleged that pursuant to his denial of entry, he was restrained,
confined and detained in the offices of the Ugandan Immigration at Entebbe
International Airport between 9.00 am and 3.00pm when he was deported back to
Kenya via Jomo Kenyatta International Airport.
110. According to the Respondent’s affidavit evidence, the Principal Immigration
Officer avers that he knows that upon denial of entry into Uganda, the Applicant
was handed over to Kenya Airways Limited with instructions to take him into their
custody and ensure that he is removed from the non permissible area and put him on
their next flight proceeding to Nairobi. The “Notice to Return or Convey Prohibited
Immigrant” addressed to the Manager Kenya Airways stated, inter alia, that the
Applicant had been denied entry in accordance with the law and the Manager was
requested to take him into his custody and ensure that he is removed from the non-
permissible area.
Black’s Law Dictionary defines “detention” as, “the act or fact of holding a person in
custody; confinement or compulsory delay.”
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Custody is defined as the “the care and control of a thing or person for inspection,
preservation or security”.
111. We have shown above that the “Notice to Convey or Remove Prohibited
Immigrant”, issued by the Principal Immigration Officer, which contained
instructions that the Applicant be taken into custody, was illegal and unjustified. It is
undeniable, that he was taken into custody, deprived of his liberty and was not a free
man between 9am and 3pm.
112. We think that whether it was Kenya Airways which took him into custody as the
Notice requested, or it was the Immigration officials who held him for some time and
Kenya Airways the rest of the time, is not material. What we find material is that it
was all done in execution of the illegal Notice of the Principal Immigration Officer.
Without it, he would have been attending the meeting with Uganda’s Chief Justice
or remain a free man in Kampala. Consequently, our view is that once the illegal
decision to declare the Applicant a prohibited immigrant was made and the Notice
to remove him from Uganda was issued the rest of the actions were merely foregone
conclusions.
113. What matters is that he was not a free man, and that his Treaty guaranteed
freedom of movement within a Partner State was cut short as a result of the actions
and decisions of the Partner State’s immigration officials, which actions were illegal
under the Treaty, the Protocol and national law. The act of pinning Kenya Airways
with responsibility for bringing a prohibited immigrant into Uganda narrowed the
Applicant’s possibilities to one, namely, that he would remain under some custody
until he boarded the next available Kenya Airways flight to Nairobi. The detention
instruction was complete when the illegal Notice was issued, not when he was put
into whichever custody that he was put.
114. Detention is indeed deprivation of liberty. When it is illegal it is not only an
infringement of the freedom of movement, but also an act that undermines one’s
dignity. Furthermore, when a citizen of a Partner State is illegally detained in another
Partner State, with no right to be informed why or to be heard in his defence, and
the reasons cannot be disclosed, even in a court of law, it is not just a violation of the
Treaty, it is indeed a threat to integration.
115. The High Court of Ireland, in a case where a woman had been denied entry into
Ireland and detained for three days, had this to say:
‘It is a matter of profound regret that a perfectly innocent person who had every right
to enter the State was instead refused entry and found herself obliged to spend the
equivalent of almost three full days in custody. This must have been a humiliating
and degrading experience for her- (see Raducan & Anor -v- MJELR & Ors [2011]
IEHC 224 at para 26)’,
Return to Kenya
The foregoing analysis clearly shows that the Applicants’ return to Kenya was
unjustified, high-handed and was procured through unlawful means.
116. Our answer to the issue, therefore, is that the actions and decisions to declare
the Applicant a prohibited immigrant, deny him entry into Uganda, detain him
and return him to Kenya were illegal, unjustified, unlawful and inconsistent with
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transparency, accountability, rule of law; and universally accepted standards of
human rights and, therefore, in violation of his rights and Uganda’s obligations under
Articles 6(d) and 7 (2) of the Treaty and Articles 7(2) and 54(2) of the Protocol.
Whether the actions of the Respondent were in conformity with Article 104 of the
EAC Treaty and Article 7 (6) of the Common Market Protocol
117. For ease of reference, we shall reproduce the content of the relevant provisions
of the Treaty and the Common Market Protocol in this Reference and analyse them
systematically.
Article 104 of the Treaty provides that:
1. The Partner States agree to adopt measures to achieve the free movement
of persons, labour and services and to ensure the enjoyment of the right of
establishment and residence of their citizens within the Community.
2. For purposes of paragraph 1 of this Article, the Partner States agree to conclude
a Protocol on the Free Movement of Persons, Labour, Services and Right of
Establishment and Residence at a time to be determined by the Council.
Article 7 of the Common Market Protocol provides that:
i) The Partner States hereby guarantee the free movement of persons who are
citizens of the other Partner States, within their territories.
ii) In accordance with paragraph 1, each Partner State shall ensure non‐
discrimination of the citizens of the other Partner States based on their
nationalities by ensuring:
a) the entry of citizens of the other Partner States into the territory of the Partner
State without a visa;
b) free movement of persons who are citizens of the other Partner States within
the territory of the Partner State;
c) that the citizens of the other Partner States are allowed to stay in the territory
of the Partner State; and
d) that the citizens of the other Partner States are allowed to exit the territory of
the Partner State without restrictions.
3. The Partner States shall, in accordance with their national laws, guarantee the
protection of the citizens of the other Partner States while in their territories.
4. The free movement of persons shall not exempt from prosecution or extradition,
a national of a Partner State who commits a crime in another Partner State.
5. The free movement of persons shall be subject to limitations imposed by the host
Partner State on grounds of public policy, public security or public health.
6. A Partner State imposing a limitation under paragraph 5, shall notify the other
Partner States accordingly.
7. The Partner States shall effect reciprocal opening of border posts and keep the
posts opened and manned for twenty four hours.
8. The movement of refugees within the Community shall be governed by the
relevant international conventions.
9. The implementation of this Article shall be in accordance with the East African
Community Common Market (Free Movement of Persons) Regulations,
specified in Annex I to this Protocol.
118. We should recall for clarity of issues that the actions complained of are the
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denial of entry to the Applicant, being declared a prohibited immigrant, detention

and return to Kenya. We have shown above that these actions were in violation of the
freedom of movement of the Applicant which is among the foundational principles
of the Common Market. We therefore do not hesitate to hold that the same actions
are in violation of Article 104 of the Treaty.
119. As regards the question whether the actions of the Respondent were in
violation of Article 7 (6), we also indicated earlier in this analysis that the provision
created an obligation on aPartner State imposing a limitation of the freedom of
movement of persons under Article 7(5) of the Protocol to notify the other Partner
States accordingly.
120 . The Respondent argued that the Applicant had a duty to prove that Uganda
did not comply with that provision, since he is the party who made the allegation.
With respect, we think otherwise. Article 7(6) is a Protocol obligation upon a Partner
State imposing a limitation to inform the other Partner States. It is also a Treaty
obligation under Article 8(3) (c). It is not dependent on whether there is litigation
or not. A notification is, in our view, a notice meant for the public in the Partner
States to be known and be complied with by all. With respect, therefore, we think
that the burden was on the Respondent to prove that Uganda had or had not made
the notification. It would otherwise be an unbearable burden on the Applicant to do
so. The Respondent did not discharge this burden.
121. With or without notification, however, we are still of the view that the Applicant’s
case had to be evaluated on its own merit. A Partner State, before imposing a
limitation on an individual would have to satisfy itself that the measure is merited
in each particular case. If, for example the Applicant, was slapped with a limitation
because he was a threat to the security interest of the East African people, it was
incumbent on the Respondent to satisfy themselves that it was merited, and where he
challenged the legality of the limitation in Court, the Respondent had a duty to prove
in Court that the Applicant indeed constituted a real threat to regional security.
122. In stating so, we are fortified by the European Court of Justice, which, while
interpreting a similar provision, in Commission of the European Communities v
Kingdom of Spain, Case – 503/03, held, inter alia, that; the Spanish authorities were
not justified in refusing entry to the persons concerned without having first verified
whether their presence constituted a genuine, present and sufficiently serious threat
affecting one of the fundamental interests of society.
123. We find, from the foregoing, that the actions of the Respondent were not in
conformity with Article 104 of the Treaty and Article 7(6) of the Protocol.
Whether the Provisions of section 52 of the Uganda Citizenship and Immigration
Act are inconsistent and in violation of Articles 6 (d), 7 (2) and 104 of the Treaty and
Article 7 of the Protocol
124. As Section 52 of the Citizenship and Immigration Control Act 1999 (the Act) is
reproduced verbatim and discussed at length elsewhere in this judgment, we do not
find it necessary to reproduce it here.
The Applicant argued that the Section is in violation because, one, it does not provide
for the right of due process before a person is declared a prohibited immigrant.
Secondly, that it does not provide for a distinction in treatment between EAC citizens
302
and other immigrants. Thirdly that it does not recognize that limitations can only be
imposed pursuant to the Protocol; and finally, that it does not provide for the duty to
inform other Partner States when a Partner State imposes limitations.
125. The Respondent, on the other hand, argued that there is no uniform EAC law on
the movement of persons and that it is an area regulated in accordance with national
law.
We have shown above that we disagree with the assertion that Section 52 does not
provide for the right to due process. We reiterate our position. We have shown, as
well, that Community Law in this area is very much part of the national law in Uganda.
The argument of the Respondent that there is no East African Community uniform
law on the free movement of persons is, therefore, erroneous. Indeed, Article 7 (9)
of the Common Market Protocol provides that the implementation of the freedom
of movement of persons shall be in accordance with the Freedom of Movement of
Persons Regulations. We have observed earlier that Regulation 2 provides that the
implementation process of Article 7 of the Protocol shall be transparent, accountable,
fair, predictable and consistent with the provisions of the Protocol.
126 . While we, respectfully, agree with the Applicant’s critique of Section 52, we are
of the opinion that the provisions cited no longer have force of law regarding citizens
of partner states and are, therefore, not inconsistent with Treaty provisions.
127. We have found and held, in Issues ii and iv, that upon enactment of the Treaty
and, subsequently, the Protocol, they became part of national law and law applicable
in Uganda as of their dates of entry into force. We reiterated, as well, our position
that The Republic of Uganda is bound by the precedence of community laws over
national ones in matters pertaining to the implementation of the Treaty.
128. We think, therefore, that the obligations voluntarily entered into by the
Republic of Uganda, and the rights acquired by the citizens of the Partner States,
under the Treaty and Protocol, in respect of the movement of citizens of the Partner
States, within Uganda, carried with them a permanent limitation against which
a provision of existing or subsequent national law incompatible with the Treaty and
Protocol, by the Republic of Uganda, cannot stand.
129 . The upshot of this, in our view, is that from the dates of entry into force of
the Treaty and the Protocol, in Uganda, Section 52 would have to be read together
with, and give precedence to, the relevant Treaty and Protocol provisions, on matters
pertaining to the determination of whether a citizen of a Partner State is a prohibited
immigrant or not. Section 52 is still applicable as it is where citizens of other nations,
except the Partner States, are concerned. In matters pertaining to citizens of the
Partner States, however, it would result in an infringement of the Treaty. In this
Reference it is clear that if the Section had been read together with the relevant Treaty
and Protocol provisions, as shown above, the Applicant would have been treated like
a citizen of a Partner State but we got the impression that a procedure, unknown to
any law, could have been applied to the Applicant and the immigration officials were
conveniently stretching the law to fit.
130. In view of the foregoing, we find and hold that the provisions of Section 52 are
neither inconsistent with, nor in violation of Articles 6(d), 7(2) and 104 of the Treaty
and Article 7 of the Protocol because, on matters pertaining to citizens of Partner
303
States, any offending provisions of the Section were rendered inoperative as of the
respective dates of entry into force of the Treaty and Protocol as applicable law in
Uganda.
Costs
131. We are alive to the provisions of Rule 111 of the Rules of this Court which
provides that “costs in any proceedings shall follow the event unless the Court shall,
for good reasons, otherwise order”.
We believe that in the filing and prosecution of this Reference the Applicant’s
objective was to highlight, contest and cause resolution to an issue of regional
concern rather than to seek material restitution, for his six hour ordeal, from the
Republic of Uganda. We think he has achieved that.
132. It is our belief also that the physical and emotional distress he was subjected
to, while tucked away and chilling unnecessarily at Entebbe International Airport,
stung the human rights activist in him into seeking to prevent it from happening to
another citizen of a Partner State. We would hope he has achieved this or, at any rate,
made his contribution to its achievement.
133. Finally, we have no doubt that the issues raised and determined in this Reference
will enrich and benefit Community jurisprudence, courtesy of the Applicant.
134 . In view of the foregoing, we find that this Reference qualifies as a public interest
and a fitting one where each party should bear their costs.
Whether the Applicant is entitled to the prayers sought.
129. In light of the above considerations and findings, prayers i, ii, iii, and iv are
granted. Prayer v is not granted.
Conclusion
130. We thank all Counsel for their research which enriched the debate and helped us
in the determination of this Reference. We make the following final orders:
i) The Reference is properly in the Court.
ii) The Sovereignty of the Republic of Uganda to deny entry to unwanted persons
who are citizens of the Partner States is not taken away by the Treaty and the
Protocol but, in denying entry to such persons, the Republic of Uganda is legally
bound to ensure compliance with the requirements of the relevant provisions of
the Treaty and the Protocol. Sovereignty cannot act as a defence or justification for
non compliance, and neither can it be a restraint or impediment to compliance.
iii) The denial of entry into Uganda of the Applicant, a citizen of a Partner State,
without according him the due process of law was illegal, unlawful and a breach
of Uganda’s obligations under Articles 6(d) and 7 (2) of the Treaty.
iv) The actions of denial of entry, detention, removal and return of the Applicant, a
citizen of a Partner State, to the Republic of Kenya, a Partner State, were illegal,
unlawful and in violation of his rights under Articles 104 of the Treaty and 7 of
the Common Market Protocol.
v) On matters pertaining to citizens of the Partner States, any provisions of Section
52 of Uganda’s Citizenship and Immigration Control Act formerly inconsistent
with provisions of the Treaty and the Protocol were rendered inoperative and
304
have no force of law, as of the respective dates of entry into force of the Treaty
and the Protocol as law applicable in the Republic of Uganda.
vi) Each party shall bear its costs. It is so ordered.
*****
Democratic Party and Mukasa Mbidde And The Secretary General of the East
African Community and the Attorney General of the Republic of Uganda
Busingye Johnston, PJ, Mary Stella Arach-Amoko, DPJ, John Mkwawa J, Butasi Jean
Bosco J, and J, Isaac Lenaola, J
May 10, 2012
EALA elections in Uganda’s Parliament - Restraining orders pending amendment of

election rules- Whether amendments had been tabled before the Parliament of the
Republic of Uganda and if the process of amendment was ongoing - Whether the 1st
Respondent failed to supervise the Government of the Republic of Uganda to ensure
that its National Assembly amended its Rules of Procedure for election of members of
EALA- Whether the election of Members to EALA is the preserve of the Parliament of
the Republic of Uganda.
Articles: 6 (d), 7, 8, 23, 27, 30, 33, 39 and 50 of the Treaty - Rules 1 (2), 17 and 24 of the
East African Court of Justice Rules of Procedure, 2010 - Rules 11(1) and Appendix B r
3, 10 and 11 of the Rules of Procedure of the Parliament of Uganda, 2006
Pursuant to Article 50 of the Treaty, the Parliament of Uganda passed the Rules
of Procedure of Uganda’s Parliament, 2006, providing for election of members
of the East African Legislative Assembly. In 2008, the Rules were found to be in
contravention of the Treaty and various Articles of the Constitution of Uganda and
declared null and void. The Attorney General of Uganda obtained a stay of execution
of that judgment and appealed against to the Supreme Court of Uganda. That appeal
was still pending at the time this Reference was filed.
The Applicants averred that those Rules contravened the Treaty as they discriminated
and limited the freedom and right of the Democratic Party (DP) and its members,
including the second Applicant, in vying for election as representatives of the EALA.
The Applicant claimed that the 2nd Respondent and its Parliament were unwilling to
amend the Rules while the 1st Respondent had failed to supervise the Government
of Uganda to ensure that its Parliament amends the rules in question to make them
consistent with Article 50. They stated that the state of affairs would continue and
become irreversible unless the Court intervened. The Applicants sought several
declarations.
Held:
1. The issue of whether the said Rules contravened any Articles of the Constitution of
the Republic of Uganda was an issue to be determined by the appropriate national
courts in Uganda.
306
2. There was inordinate delay in amending the Rules on the part of the 2nd Respondent.
And, if the issue of amendments was not addressed with expedition and in conformity
with the Treaty, it was likely to stall the commencement of the next EALA term and
result in further endless litigation.
3. The Parliament of the Republic of Uganda, the Attorney General of the Republic of
Uganda, the EALA were restrained and prohibited from conducting and carrying
out any elections of members to the EALA, assembling, convening, recognising,
administering Oath of Office or otherwise howsoever presiding over or participating
in the election of the Representatives of Uganda and recognising of any names of
nominees as duly nominated and elected to the EALA until the Rules 11(1) and
Appendix B r 3, 10 and 11 of the Rules of Procedure of the Parliament of Uganda,
2006 were amended by the Parliament of the Republic of Uganda to conform to
the provisions of Article 50 of the Treaty for the Establishment of the East African
Community.
4. While inaction by the 1st Respondent would not be considered a Treaty violation,
it could constitute a violation under a different set of facts. The Respondent was
therefore encouraged to establish, as a matter of administrative principle, a standard
practice of following up on allegations of treaty infringements once it received formal
communication about the same and to act as appropriate and provide feedback to
the complainant.
Cases cited:
Bennet v. Chappel [1966] Ch.391,CA
Christopher Mtikila v The Attorney General of Tanzania and the Secretary General of
the East African Community, EACJ Reference No 2 of 2007
CoxV. Green [1996] Ch. 216
Jacob Oulanyah Vs The Attorney General, Constitutional Court of Uganda, Constitutional
Petition No. 28 of 2006
Loelv. Sanger [1949] Ch. 258
Mellstram v Garner [1970] IW.L.R.603
Prof Peter Anyang Nyong’o and others vs The Attorney General of Kenya and 2 others,
EACJ Reference No 1 of 2006
Williams’s v Home Office (No.2) 1981IALL ER1211
Judgment
Introduction
1. This is a Reference by the Democratic Party, one of the Registered Political Parties in
the Republic of Uganda and represented in the Parliament of Uganda, (hereinafter
referred to as “the DP”) and one Mukasa Fred Mbidde, a DP Member and legal
Advisor of the DP and an Advocate of the Courts of Judicature of Uganda.
2. The Reference is brought under Articles 6 (d), 7, 8, 23, 27, 30, 33, 39 and 50 of the
Treaty for the Establishment of the East African Community (the Treaty) and Rules
1 (2), 17 and 24 of the East African Court of Justice Rules of Procedure (the Rules).
The Reference is supported by the Affidavit of Mukasa Fred Mbidde.
Democratic Party and another v EAC Secretary General and another 307
3. The 1st and 2nd Respondents are the Secretary General of East African Community
and the Attorney General of the Republic of Uganda, respectively. In opposition to
the Reference, there are the replying affidavits, for the 1st Respondent, of Dr. Julius
Tangus Rotich, a Deputy Secretary General and for the second Respondent that of
The Attorney General, Hon. Peter Nyombi, MP and that of Daniel Gantungo, of the
Attorney General’s Chambers, Uganda.
4. Mr. Justin Semuyaba appeared for the Applicants, Mr. Wilbert Kaahwa appeared for
the 1st Respondent and the 2nd Respondents was represented by Mr. Philip Mwaka
and Ms. Christine Kaahwa.
Background
5. This Reference is predicated on conformity to Article 50 (1) of the Treaty which
provides that, “1. The National Assembly of each Partner State shall elect, not from
among its members, nine members of the Assembly, who shall represent as much as
is feasible, the various political parties 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.”
6. Pursuant to the above Article, the Parliament of Uganda passed the Rules of
Procedure of Uganda’s Parliament, 2006, providing for election of members of the
East African Legislative Assembly (hereinafter referred to as “EALA”). The Rules
were, in 2008, found to be in contravention of Article 50 of the Treaty and various
Articles of the Constitution of Uganda by Uganda’s Constitutional Court in a now
famous Constitutional Petition No28 of 2006, Jacob Oulanyah Vs TheAttorney
General (hereinafter referred to “the Oulanyah Case”) and were declared 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.
The Applicants’ case.

7. The crux of the Applicants’ case is that the Government of the Republic of Uganda
and its Parliament are unwilling to amend the Rules of Procedure of Parliament,
2006 for the election of the EALA Members to have them conform to the provisions
of Article 50 of the Treaty and that the Government and Parliament of Uganda
intend to conduct the upcoming EALA elections by those unamended Rules.
8. The Applicants contend that those Rules, specifically Rule 11 (1) and Appendix B
r3, 10 and 11 of the rules in issue, contravene not only Article 21 (1) and (2), 29 (1)
(e) 89 (1) and 94 (1) of the Uganda Constitution but also Article 50 of the Treaty
to the extent that they discriminate and limit the freedom and right of the DP and
its members, including the second Applicant, to associate in vying for election as
representatives of the EALA.
9. The Applicants also claim that the Secretary General has failed to supervise the
Government of Uganda to ensure that its Parliament amends the rules in question to
make them consistent with Article 50 of the Treaty.
10. The Applicants maintain that the above state of affairs means that the DP, other
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Political Parties and shades of opinion in Uganda, though represented in the Uganda
Parliament are, and will not be, represented in EALA, which violates Article 50 of the
Treaty. Fearing that this state of affairs will continue and become irreversible unless
the Court intervenes, the Applicants filed this Reference and prayed for orders that;
a) Rule 11(1) and Appendix B r 3, 10, 11 of the Rules of Procedure of the Parliament
of Uganda 2006 which are going to be used by the Parliament of Uganda in the
election of the members of the East African Legislative Assembly in the upcoming
elections are inconsistent with and contravene Articles 29(1) (e) of the Constitution
of the Republic of Uganda, to the extent that they limit the freedom and right of
the Democratic Party and its members including the second applicant to associate
in vying for election for members as representatives in the East African Legislative
Assembly (EALA).
b) Rule 11(1) and Appendix B r 3, 10, 11 of the Rules of Procedure of the Parliament of
Uganda 2006 which are going to be used in upcoming elections of the members of
the East African Legislative Assembly are inconsistent with and contravene Articles
21(1) and (2) of the Constitution of the Republic of Uganda, to the extent that they
discriminate against the opposition political parties including the second applicant
in vying for elections to the East African Legislative Assembly.
c) The procedure to be carried out under the authority of Rules 11(1) and Appendix
B r 3, 10, 11 of the Rules of Procedure of the Parliament of Uganda 2006 which are
going to be used by the Parliament of Uganda in election of members of the East
African Legislative Assembly are inconsistent with and contravene Article 89(1) and
94(1) of the Constitution of the Republic of Uganda to the extent that the said Rules
of Parliament do not allow the Members of the Parliament of Uganda to elect the
members of EALA.
d) The procedure to be used under the authority of Rules 11(1) and Appendix B r 3, 10,
11 of the Rules of Procedure of the Parliament of Uganda 2006 which are going to be
used by the Parliament of Uganda in the upcoming elections of the members of the
East African Legislative Assembly under Rule 2 (2) the interpretation section thereof
do not define election in its true sense of the word as they provide for approval and
not election.
e) The inaction of the Parliament of Uganda to amend the said Rules to conform to
Article 50 of the Treaty for Establishment of the East African Community is in itself
an infringement of the fundamental principles and the doctrines and the principles
of good governance, including adherence to the principles of democracy, the rule of
law, social justice and the maintenance of universally accepted standards of human
rights which are enshrined in those articles of the Treaty of the Community in
particular with regard to peaceful settlement of disputes.
f) The inaction and the loud silence by the Government of Uganda and the Parliament
of Uganda in not amending and realigning Rules 11(1) and Appendix B r 3, 10, 11 of
the Rules of Procedure of the Parliament of Uganda 2006 in accordance with Article
50 of the Treaty for Establishment of the East African Community which are going
to be used by the Parliament of Uganda in the upcoming elections of members of the
East African Legislative Assembly is an infringement of Article 50 of the Treaty for
g) The Secretary General of the East African Community has failed to supervise the
Government of Uganda to ensure that the Parliament of Uganda amends its laws in
order to make them conform to Article 50 of the Treaty for the Establishment of the
h) Pending the hearing and determination of the instant motion, this Honourable
Court be pleased to restrain and prohibit the East African Legislative Assembly, The
Attorney General of Uganda and The Parliament of Uganda from conducting and
carrying out any elections, assembling, convening, recognising, Administering Oath
of office or otherwise howsoever presiding over or participating in the Election of
the Representatives of Uganda and recognizing of any names of nominees as duly
nominated and elected to the East African Legislative Assembly until Rules 11(1)
and Appendix B r 3, 10, 11 of the Rules of Procedure of the Parliament of Uganda,
2006 which are going to be used by the Parliament of Uganda in the upcoming
elections of the members of The East African Legislative Assembly are amended by
the Parliament of Uganda to conform to Article 50 of Treaty for Establishment of the
i) The Attorney General is vicariously liable for the actions of The Government of
Uganda and The Parliament of Uganda.
j) The costs of this Reference be provided for.
The 1st Respondent’s case

11. The 1st Respondent counters by denying the legality of the Applicants’ claims and
in particular argues that election of members of EALA is a function of Partner
States’ National Assemblies; that the Republic of Uganda pursuant to Article 50 (1)
of the Treaty and the Rules of Procedure of Parliament of 2006, has determined
the procedure for the election of EALA Members; that any amendment howsoever
caused is a process vested in the Parliament of Uganda over which the Secretary
General has no supervisory powers. The 1st Respondent asserts further that not
only do matters complained of in this Reference not fall within the purview of Article
29 of the Treaty, but that he has also not considered that the Republic of Uganda
to has failed to fulfil a Treaty obligation. The Secretary General finally asserts that
further, and in the alternative, the Parliament of the Republic of Uganda has “within
its Constitutional sovereignty and discretionary powers” embarked on addressing
the Rules of Procedure that were impugned.
The 2nd Respondent’s case.

12. For its part the 2nd Respondent states that the Republic of Uganda and its agents, at
all times and in all instances, acted within their constitutional mandate and within
the confines of the Treaty, the African Charter and related instruments. In particular,
the 2nd Respondent states that it acknowledges that the rules in question were
impugned and, accordingly, an amendment process commenced; that proposals
have been made and will “beimminently presented to the Plenary for consideration”;
that the information is in the public domain and finally that the Applicants’ failure
to acknowledge the above casts doubt on their good faith in bringing this Reference
to this Court.
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13. We need to point out at this juncture, for chronological reference, that when this
Reference was filed the Applicants applied, under certificate of urgency, for a
restraining order and the Court allowed the application and granted a temporary
injunction restraining the Attorney General of Uganda and the Parliament of the
Republic of Uganda from conducting elections of the Representatives of the Republic
of Uganda to the EALA until determination of this Reference.
14. Pursuant to Rule 53 of the Rules of this Court, a Scheduling Conference was held
on the 29th February, 2012 at which the following were framed as the points of
agreement and disagreement respectively:
(i)points of agreement:
a) The election of members of the East African Legislative Assembly is governed
by Article 50 of the Treaty;
b) Pursuant to the provisions of the Treaty, the election of the Members of the
EALA from the Republic of Uganda is the preserve of the Parliament of the
Republic of Uganda;
c) The current Rules of Procedure (Appendix B to the Reference) were declared
null and void in the Jacob Oulanyah case;
d) Amendments have been proposed/tabled before Parliament by the Attorney
General of the Republic of Uganda and the process of amendment is ongoing.
(ii) points of disagreement:
a) Whether or not the 1st Respondent has failed to supervise the Government
of the Republic of Uganda to ensure that its National Assembly amends its
Rules of Procedure for election of members of the East African Legislative
Assembly.
b) Whether or not the Applicants are entitled to declarations sought against the
Respondents.
15. It was further agreed at the said 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.
Both parties noted that the case presented a good potential for settlement and it was
agreed that the case preparation and attempts to settle should proceed concurrently
and, in the event that a settlement is reached, the Court would be informed and
appropriate orders would be issued. Ultimately no settlement was reached, hence
this judgment.
Preliminary Point
16. In their written submissions and at the hearing, Counsel for the 2nd Respondent
raised an issue in-limine, which they called “a preliminary objection on a point of
law” to the effect that the Reference is moot and an abuse of Court process, in view
of the proceedings in the Parliament of the Republic of Uganda to amend the 2006
Parliamentary Rules of Procedure. Consequently,counsel invited the Court to find
that it has no jurisdiction to proceed with it. In addition Counsel asked the Court
to take into consideration the fact that time was fast running out for the next EALA
elections and prayed, in the alternative, that the Injunction Order be varied to enable
the elections to take place.
In support of this stance, Counsel for the 2nd Respondent submitted that;
a) the Parliament of Uganda has not taken any steps to conduct elections of its
EALA Representatives under the 2006, Rules of Procedure;
b) although there is in place a stay of execution of judgment in the Oulanyah, Case
there is ample evidence that the Parliament of Uganda is in the process of
amending its Rules of Procedure, which are due to be enacted imminently and
are in any case the Rules of Procedure to be used in the 2012 EALA elections;
c) the matter could have been resolved administratively without recourse to Court
and the Applicants being in Parliament knew that it could be so resolved;
d) this Reference is premised on assumption or speculation, with no iota of evidence
offered, that the 2006 Rules of Procedure will be used in the EALA elections of
2012;
e) the instant Reference is anticipatory in nature, could have been addressed
administratively without recourse to court and is, therefore, not properly before
or justiciable in this Court.
17. Mr. Semuyaba, Counsel for the Applicants, also in submissions and at the hearing,
opposed the 2nd Respondent’s objection and put up the following reasons:
(a) that EALA members who had been elected to represent Uganda using the 2006
rules went ahead to sit in the Assembly for five years during which period the
appeal of the Oulanyah Case before the Supreme Court was never heard;
(b) that for all intents and purposes, the impugned Rules 11 (1) and Appendix B r
3, 10, 11 of the Rules of Procedure of the Parliament of Uganda, 2006 have not
been amended todate, are still law and are still on the statute books in Uganda;
(c) that it is clear that the Attorney General of Uganda is not ready and willing to
amend the Rules impugned by Uganda’s Constitutional Court because he (the
Attorney General) filed a Memorandum of Appeal in which he stated that he was
dissatisfied with the whole of the judgment and decision of the Constitutional
Court;
(d) that the Minister of State for Justice and Constitutional Affairs of Uganda, Hon.
Fredrick Ruhindi stated in Parliament that the Government did not abandon the
Appeal in the Supreme Court;
(e) that the Court should take judicial notice of the fact that the Petitioner in
Constitutional Petition No 28 of 2006, Hon Jacob Oulanyah has changed political
alliance and joined the NRM Party and is, therefore, unlikely to pursue the
petition as he is no longer an independent member of the Parliament of Uganda;
(f) that the foregoing demonstrates that the Reference is not moot, anticipatory or
premature as alleged by the 2nd Respondent but a Reference that raises issues
that can stall the operations of the Community if not resolved.
18. It is trite law that a party may raise any point of law at any stage of the proceedings
and that points of law should be determined at the outset because of their potential,
if successful, to dispose of cases without the need for their determination on the
merits –See: Mukisa Biscuit Manufacturing Company Ltd v. West End Distributors
Ltd [1969] EA 696.
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19. On examination of the written and oral submissions, however, we find that the issue
raised was not a pure point of law but rather an issue requiring evidential proof before
it could be determined. Counsel for the 2nd Respondent and for the Applicants both
referred us to the evidence already on record, including the affidavits of The Attorney
General, Hon Peter Nyombi, Hansards of Uganda’s Parliament and other evidence
to prove their respective and opposing arguments.
Although the issue raised by Counsel for the 2nd Respondent was not a pure point of
law we find, nonetherless, that it has to be determined at the outset because, it would
dispose of the Reference if it is determined in favour of the 2nd Respondent.
We have carefully considered the evidence and the rival submissions on this matter
and have the following to say:
20. It is not in dispute that on 30th May 2008, the Constitutional Court of Uganda in the
Oulanyah Case made declaratory orders impugning the Rules which are the major
subject of this Reference. The Constitutional Court after considering the issues in
the Petition declared, inter alia, that;
1) “Rule 11(1) Appendix B rule 3, 10 and 11 of the Parliamentary Rules of Procedure
of Parliament are inconsistent with Article 21 (1), 2 of the Constitution.
2) 3 Rule 11(1) Appendix B rule 11 (1) of the Parliamentary Rules of Procedure is
inconsistent with Article 74(4) (5) of the Constitution and is null and void.
3) Rule 11(1) Appendix B rule 3, 10 and 11 of the Rules of Procedure of Parliament
of Uganda is inconsistent with Article 89 (1) and 94(1) of the Constitution and is
therefore null and void
4) The Parliament of Uganda as the Electoral College did not carry out any election
for members of the East African Legislative Assembly as required by Article 50
of the Treaty and Article 89 of the Constitution ...”
For clarity’s sake, the impugned Rules provide as follows:
i. Rule11(1) provides that elections of Members of EALA, “shall reflect the
proportional party membership based on numerical strength of the Parties in
the House and take into consideration gender and other shades of opinion”, and;
ii. Rule 3 of Appendix B provides that “elected members of the Assembly representing
Uganda shall be nominated by the Parties or Organisations represented in the
House on the basis of proportional party membership taking into consideration
the numerical strength of the parties or organisations and gender” and;
iii. “rule 10 provides that “the Speaker shall announce to the House the nominations
of members to the EALA”
iv. “rule 11 provides that “As soon as the Speaker announces the names of the
elected members the Clerk shall publish the names in the Gazzette”.
21. It is common ground that the Attorney General applied for stay of execution of
that Order which was granted on the 23rd June 2008 and is still in place todate.
The Attorney General also appealed the case on the 12th May 2009 and it is further
common ground that this Appeal has not been heard todate. What is clear from the
foregoing is that the impugned Rules are still law in Uganda.
22. Counsel for the Applicants also invited the Court, in written and oral submissions,
to take judicial notice of the fact that Hon Jacob Oulanyah, the Petitioner in
Constitutional Petition No 28 of 2006 (referred to above), is no longer an Independent,
as he has since joined a political party, and it is likely that he is no longer interested
in the Petition. Counsel for the 2nd Respondent did not contradict this submission.
We therefore, take judicial notice thereof.
23. In regard to the assertion that amendments of the Rules are ongoing, we acknowledge
the affidavit of the Attorney General and its contents but with due respect we do not
find it sufficient to resolve the inaction complained of. Indeed the Hon Attorney
General in the said affidavit deponed, inter alia, that while he was Chairperson of the
Rules, Privileges and Discipline Committee of the 8th Parliament, the Committee;
“...........in recognition of and pursuant to the decision of the Constitutional Court of
Uganda in Constitutional Petition No. 28 of 2006 Jacob Oulanyah Vs The Attorney
General, the Government of Uganda commenced the process of amending the Rules
of Procedure of the Parliament of Uganda to conform to the East African Treaty and
the Constitution of Uganda.” This was on September 20th 2011.
24. Exactly five months later, on the 21st February 2012, The Deputy Attorney General,
Hon Ruhindi Fredrick, when querried in Parliament about the Oulanyah Case appeal
in the Supreme Court, told the House that they (the Attorney General’s Chambers);
“... did not abandon the Appeal in the Supreme Court. We have had challenges in
the Supreme Court and sometimes due to problems of quorum ... for Judges to sit
in the Supreme Court. It has always been an issue of resources ... but it was actually
not the Attorney General abandoning an Appeal.” (Official Report of Parliament, 1st
Session, Third Meeting, at p 2524)
25. In our considered view, these contradictory statements coming not only from the
same office, that of the Chief Legal Advisor to the Government , are glaringly short
on clarity and leave even a trusting beneficiary of the amendments in serious doubt.
26. Furthermore, during the hearing of the Reference, Counsel for the 2nd Respondent
told the Court that the process of amending the 2006 Rules started prior to May 2011
and that:
“... the Rules of 2012 are in the process of being completed”and urged the Court
to consider the matter settled. In respect of the stay of execution, in place since the
Oulanyah case, Counsel submitted that;
“the stay may serve only the purpose of staying but the direction and the orders
given in the Jacob Oulanyah Case are being put into place by the 2nd Respondent”
27. The above submissions of Counsel, with respect, reinforce, rather than dispel, doubt.
Why a straightforward amendment which started prior to 2011 should still be; “in
the process of being completed” or “being put into place”or“in the course of debate”
or “in the process of amendment.....”, is difficult to fathom.
In the premises, we too find them devoid of any promise for an intending beneficiary
such as the Applicants.
28. On whether the matter could have been addressed administratively, we think, indeed
it could because it appears to be simple. We however do not agree with Counsel for
the 2nd Respondent that the Applicants are at fault for resorting to this Court. The
reasons they advanced are convincing. On the contrary, this dispute looks, to us, like
one which the Attorney General had not only the power but also the duty, suomotu
to resolve, or help resolve, administratively, given his duties under Article 119 of
the Constitution of Uganda. That he did not do so since the Oulanyah Case to date,
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we think, he should shoulder the blame and not seek to conveniently shift it to the
Applicants.
29. We find and hold, therefore, that the instant Reference is neither moot, anticipatory
nor an abuse of court process. It is rather a proper Reference grounded on the facts
that the said 2006 Rules of Procedure are still law, efforts to amend them are not
promising, an appeal against their nullification is still in place, a next round of EALA
elections is fast approaching and it is the Applicants’ legitimate fear that the kind of
election that happened in 2006 can happen again, to their disadvantage.
The objection is accordingly overruled.
30. While canvassing this point, Counsel for the Applicants, invited us to consider
and determine what the substance of the amendment of the Rules, to make them
conform to Article 50 of the Treaty should be. One of the Hansards of the Parliament
of Uganda filed in evidence also indicated that the Parliament of Uganda at one time
expressed similar sentiments. (See Official Report of the Proceedings of Parliament,1st
Session, 16th Sitting, Third Meeting at p.2614.)
31. We note as well that in a letter dated 27th March 2012 to the Registrar of this Court,
to which Counsel for the 2nd Respondent alluded during oral submissions, the
Deputy Attorney General, Hon. Fredrick Ruhindi, stated in one of its concluding
paragraphs, inter alia, that;
“Parliament resolved that the Attorney General should seek guidance on the
interpretation of Article 51(1) in respect of the application by Legal Brains Trust......”.
32. With due respect, the letter was not of much use to us because it reached the court
record by a procedure unknown to the Court’s Rules of Procedure and, as such, it
lacked any ring of appropriateness. We did not attach evidential value to it. In any
event, the Treaty in Article 50 provides, inter alia, that elections of EALA members
shall be conducted; “....in accordance with such procedure as the National Assembly
of each Partner State may determine”.
33. This Court has reiterated this position before- See Prof Peter Anyang Nyong’o
and others vs The Attorney General of Kenya and 2 others, Reference No 1 of 2006,
Christopher Mtikila v The Attorney General of Tanzania and the Secretary General of
the East African Community, Reference No 2 of 2007. We do so even now.
34. Further it is an agreed point in this Reference that“the election of members of the
East African Legislative Assembly from the Republic of Uganda is the preserve of the
National Assembly of the Republic of Uganda.”
35. We, therefore, do not consider that it is the Court’s duty, at this juncture, to give
guidance to or interpret for the Legislature of Uganda on what does or does not
constitute compliance with Article 50 or Article 50 (1) of the Treaty because it is not
the issue in contention. The issue about the Rules in this Reference is that they have
not been amended to conform to Article 50 of the Treaty since the Oulanyah Case
and there is no tangible promise that they will be. We shall say something about the
matter later in this judgment.
Consideration of the agreed Issues:

Issue No.1. - Whether, or not, the 1st Respondent has failed to supervise the
Government of the Republic of Uganda to ensure that its Parliament amends its Rules
of Procedure for the election of Members of the East African Legislative Assembly.
36. The Applicants’ complaints above, about which the Secretary General is alleged to
have taken no action, are contained in a letter from the Democratic Party, dated 27th
July 2011, copy of which is at page 125 of the Reference, addressed to the Secretary
General by the 2nd Applicant. The letter draws attention of the Secretary General
to the Rules of Procedure of election of members of EALA and asserts that the “...
provisions under the rules are an outright infringement of the East African Treaty
1999 ...” (sic) and goes on to explain why they are an infringement. The purpose of
the letter, to quote from its last paragraph, is as follows;
“The purpose of this letter is to require your good office to conduct your supervisory
role of the Community buttressed in Article 29 (1) of the Treaty and accordingly
prevail upon Uganda as a Partner State to amend its rule 11 (1) for the election of
members of the East African Community (sic) attached as appendix B to the rules
of Procedure of the Parliament of the Republic of Uganda for purposes of strict
adherence to Article 50 (1) of the Treaty in particular with regard to our quest
for representation to the Assembly and the attendant manner and conduct of the
elections as preparations by intending candidates are underway.” (sic)
37. The complaints contained therein are, in our view, that;
a) the Secretary General was requested to prevail upon Uganda to amend its rules
providing for elections to EALA, to adhere to Article 50 of the Treaty;
b) the Democratic Party intends to be represented in the EALA; and
c) that preparations by intending candidates are underway.
38. We find that points (c) and (d) that were agreed at the Scheduling Conference
(supra) seem to show that the Secretary General cannot be blamed for inaction or
loud silence in this Reference.
We find the alleged want of supervision on the part of the Secretary General to ensure
that the Rules in question are amended unsustainable in the face of the Parties’
agreement, above, that the Rules were declared null and void in the Oulanyah Case
and that the process of amending them is ongoing. It would be unjust, in our view,
to fault the Secretary General for not supervising or following up on some process
inside a Partner State which, the parties, including the one complaining, agree is
being undertaken by the Partner State.
39. The alleged want of action or inaction on the part of the Secretary General as
Ugandan Members of EALA are “about” to be elected using the impugned Rules in
contravention Article 50 of the Treaty also, in our view, fails to stand because those
elections have not taken place, and, apart from assertions from both the Applicants
and the 2nd Respondent’s Counsel, we were not shown evidence that they are about
to take place.
40. In the result, we find no merit in the allegations that the Secretary General has failed
to supervise the Republic of Uganda and its Parliament to ensure that they amend
the said Rules of Procedure or that he has taken no action as EALA members of the
Republic of Uganda are about to be elected using the impugned Rules. We do not
find it useful to examine the rest of the arguments.
The issue is resolved in the negative
41. We observe, however, that we did not get any evidence in the written or oral
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submissions about what the Secretary General did after receiving the Democratic
Party’s letter. Mr Kaahwa, Counsel for the 1st Respondent did not inform us of a
particular action that the Secretary General took, that is, whether he responded to
the letter and how; whether he did not respond to it and why; or whether he took any
step to verify the claims contained therein and what findings he made.
42. While we would not consider such inaction as a Treaty violation in this particular
Reference due to its particular factual situation as explained above we are aware that
it can constitute a violation under a different set of facts.
43. We would, therefore, encourage the Community Secretariat to establish, as a matter
of administrative principle, a standard practice of following up on allegations of
treaty infringements and/or violations once it receives formal communication about
the same and to act as appropriate including providing feedback to the complainant.
That would be, in our view, a good administrative act that would not overly tax either
the Community Secretariat or the Secretary General.
Issue No. 2. - Whether or not the Applicants are entitled to the declarations sought.
44. In this Reference the Applicants sought a number of Declarations. At the outset
we briefly examine the law on Declarations which we intend to be guided by in
determining the issue.
Black’s Law Dictionary defines “declaration” as:
“A formal statement, proclamation or announcement ...” Black’ s Law Dictionary
Ninth Edition at p.467)
Hood Phillips and Jackson describe the objective of declarations thus;“An action
for a declaration asks for a “declaration of right”. It may be brought ... in the Court
even though no damages or other relief is claimed ...” – See Constitutional and
Administrative Law, Hood Phillips and Jackson, Eighth Edition, at p.735.
In Cox V. Green [1996] Ch. 216, Court observed that for a declaration to issue “...
there must be a justifiable issue”, and in a number of other precedents See (Loel
v. Sanger [1949] Ch. 258, Mellstram v Garner [1970] IW.L.R.603 it has been held
that the remedy of declaration cannot be brought in order to “.... ask hypothetical
questions”. In Bennet v. Chappel [1966] Ch.391,CA. Court held that, “The Court, in
its discretion, will not grant a declaration unless the remedy would be of real value
to the plaintiff”. In Williams v Home Office (No.2) 1981IALL ER1211, TudorEvansJ,
held that,“The Court will not grant declarations which are academic and of no
practical value”.
45. In light of the above authorities we will examine the declarations sought in the order
in which the Applicant listed them and which we have reproduced elsewhere above.
In prayers a, b and c the Applicants seek declarations that the impugned Rules
contravene various Articles of the Constitution of the Republic of Uganda.
46. We find that the issue of whether the said Rules contravene any Articles of the
Constitution of the Republic of Uganda is, in our view, an issue to be determined by
the appropriate national courts in Uganda and we decline the invitation to assume
that role.
In the result the declarations sought in (a), (b) and (c) cannot be granted.
47. In prayer (d) the Applicants seek a declaration that the said Rules of 2006 do not
define “election in its true sense ...”
Since it is a point of agreement that the Rules are in the process of being amended it
would be merely academic and of no practical value to the Applicants to grant such
a declaration- (See: Bennet Vs Chappel (supra))
48. In (e) the Applicants seek a declaration that the inaction of the Uganda Parliament
to amend the said Rules to conform to Article 50 of the Treaty constitutes an
infringement of the fundamental principles enshrined in the Treaty.
It was agreed at the Scheduling Conference that the Parliament of the Republic of
Uganda is in the process of amending the Rules. We find that it would be hypothetical
to grant a declaration such as is being sought-(See: Mellstram vs Garner (supra).)
49. In prayer (f), briefly, the Applicants are seeking a declaration that the inaction and
loud silence by the Government of Uganda and the Parliament of Uganda in not
amending the rules in accordance to Article 50 (1)of the Treaty is an infringement of
the Article. The essential requirements for EALA elections provided in Article 50 of
the Treaty are that:
- 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 is feasible:-
a) the political parties in the National Assembly;
b) shades of opinion;
c) gender; and
d) other special interest groups;
- the procedure for elections shall be determined by the National Assembly.
Any election, or rule of procedure for election, of EALA members that departs from
the above clear requirements risks contravening the Treaty.
50. We also note that the Constitutional Court in the Oulanyah Case decided, inter alia,
that; (per Okello JA, as he then was): “on issues 1-4, I concur with the reasoning
and conclusions of Mpagi Bahigeine, JA. I agree that for the reasons she has given
that Rule 11(1) of the rules of Procedure of the Parliament of Uganda, 2006 which
provided that election of the members of the East African Legislative Assembly
representing Uganda, be conducted under Appendix B r3, is inconsistent, with all
the stated Articles of the Constitution. As seen above r3 of Appendix B omitted to
provide for “consideration of other shades of opinion in the House when electing
Members of the East African Legislative Assembly representing Uganda. This is a
serious omission because it is the basis of the Petitioner’s complaint. It contradicted
the very clear provision of Rule 11 (1) of the Rules of Procedure of Parliament of
Uganda, 2006 and Article 50 (1) of the Treaty”.
The Learned Judge went on to state that Rule 10 of Appendix B also failed to provide
the mode of election by Parliament and stated that; “.....this omission is contrary
to Article 50(1) of the Treaty which provides that the elected members of the EALA
representing a Partner State shall be elected by the National Assembly of the Partner
State...”
51. This was on May 30th, 2008. Four years down the road, nothing has been done
by the 2nd Respondent apart from “recognising” the Oulanyah Case and making
commitments to amend the Rules. Clearly there has been an inordinate delay to
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amend the Rules on the part of the 2nd Respondent. Without doubt the delay has
locked the Applicants out of the EALA and has, understandably, frustrated them. It
is also a delay which, if not addressed, could adversely impact the commencement
of the next EALA term. Bluntly put, the conduct of the Republic of Uganda has
imposed this costly and avoidable Reference on the Applicants and, if the issue of
amendments is not addressed with expedition and in conformity with the Treaty, it
is likely not only to stall the commencement of the next EALA term but also result in
further endless litigation.
52. The 2nd Respondent also seems to have exploited this delay for as long as there was
a legal possibility. One result of this delay, for instance, is that the legal basis of the
current EALA members from Uganda has comprised of the disputed election, the
judgment nullifying that election, the stay of execution of that judgment and the
unheard appeal against that judgment. Given that the current EALA term is almost
at an end, we think that if the appeal eventually goes for hearing and determination
it will, in almost all likelihood, be determined after the expiry of the current term.
53. Whether this was achieved by design, sheer luck or coincidence, the 2nd Respondent’s
Counsel were not able to explain to us. What appears natural to us, though, is that
we cannot fault the Applicants for doubting, legitimately so, in our view, the 2nd
Respondent’s intentions given the way the whole process played out. The Applicants’
dilemma is that if this could happen on the 2nd Respondent’s watch, and for four
years it has not been resolved, it can happen again unless the Applicants are vigilant
enough to outsource intervention which is what they did in the instant Reference.
54. In light of the facts that it was agreed at the Scheduling Conference that election of
EALA members is a preserve of the Republic of Uganda; that the impugned Rules of
Procedure were declared null and void by the Oulanyah Case; that the amendment
process thereof is ongoing; and that the 2nd Respondent assured this Court that the
upcoming EALA elections will be conducted using amended Rules that conform to
Article 50 of the Treaty, we find that it is only fair to give the 2nd Respondent the
benefit of doubt by, inter alia, not granting the declaration sought. We say so despite
our finding that the 2nd Respondent’s conduct regarding amendment of the 2006
Rules leaves a lot to be desired and is the cause of the filing of this Reference.
55. The Community Court should, in our humble view, support positive and forward
looking programs for the future rather than dwell on negative and inward looking
agendas that are past.
In any event, we think that the grant of such a declaration would not be of real value
to the Applicants- see Williams Vs Home Office (supra).
Accordingly we decline to grant the declaration sought.
56. In (g) the Applicants seek a declaration that the Secretary General has failed to
supervise the Government of Uganda to ensure that Parliament amends its laws to
make them conform to Article 50 of the Treaty.
In view of our findings on Issue No. 1 this declaration, too, is not granted.
57. In (h) The Applicants seek orders restraining and prohibiting the EALA, the Attorney
General of Uganda and the Parliament of Uganda from conducting and carrying out
any elections under the Rules of Procedure of the Parliament of Uganda, 2006 until
those Rules are amended to conform to Article 50 of the Treaty.
58. We think that this is one remedy that would be of real practical value to the Applicants,
yet occasion no prejudice to the either Respondent, since the 2nd Respondent is in
the process of amending the 2006 impugned Rules of Procedure of Parliament and
EALA elections have not taken place. We have said enough elsewhere above why this
is the case.
The declaration sought is accordingly granted.
59. In (i) the Applicants seek orders that the Attorney General of the Republic of Uganda
be held vicariously liable for the actions of the Government and Parliament of the
Republic of Uganda.
We note that apart from mere assertions the Applicants did not show any particulars
of omission or commission for which we can hold the Attorney General vicariously
liable.
Accordingly we considered the prayer abandoned.
60. In prayer (j) the Applicants prayed for costs. Having found as above we think it is
fair and equitable that they should get the costs from the 2nd Respondent.
Decision of the Court

61. In view of our findings above, we find and hold that the Applicants have made
out a case that the 2006 Rules do not conform to the Treaty. Accordingly, they are
entitled to orders that will restrain the Parliament of the Republic of Uganda from
conducting the EALA elections unless and until they amend the impugned Rules to
conform to Article 50 of the Treaty.
In conclusion, It is Hereby Ordered That:

1. The Parliament of the Republic of Uganda, the Attorney General of the Republic of
Uganda, the EALA are restrained and prohibited from conducting and carrying
out any elections of members to the EALA, assembling, convening, recognising,
administering Oath of Office or otherwise howsoever presiding over or
participating in the election of the Representatives of Uganda and recognising
of any names of nominees as duly nominated and elected to the EALA until
the Rules 11(1) and Appendix B r 3, 10 and 11 of the Rules of Procedure of
the Parliament of Uganda, 2006 are amended by the Parliament of the Republic
of Uganda to conform to the provisions of Article 50 of the Treaty for the
2. The case against the 1st Respondent is dismissed with no orders as to costs.
3. The 2nd Respondents shall pay the costs of this Reference to the Applicants.
****
Reference No 8 of 2011
Professor Nyamoya François And Attorney General of the Republic of Burundi &
The Secretary General of the East African Community
Mary Stella Arach-Amoko, DPJ(Rtd), Isaac Lenaola, DPJ, John Mkwawa, J

February 28,2014
Amendment of Pleadings - Declaratory Orders - Limitation of Time - Adherence to

Court’s Rules of Procedure - Whether the Court had jurisdiction -Whether the actions
and omissions of the 1st Respondent infringed the Treaty- Whether the 2nd Respondent
failed to fulfill his obligations under EAC Treaty.
Articles 3 (3) (b), 6 (d), 7 (2), 8 (4), 27 (1) and 30 (1) and (2) of the Treaty for the
Establishment of the East African Community and Rules 1(2) and 24 of East African
Community Rules of Procedure- Rules 45, 48(a), 49 of the EACJ’s Rules of Procedure,
2010
On 28th July 2011, the Applicant, who was an advocate and a spokesperson of one of
the Opposition Political Parties in Burundi, was arrested on the orders of the Public
Prosecutor of Burundi for alleged subornation of witnesses in a criminal matter
which involved the murder of one, Dr. Kassim Allan. The case had been instituted
sometime in 2003. The Tribunal of First Instance of Bujumbura, where the Applicant
was charged, released him immediately and provisionally pursuant to the Penal
Procedure Laws of Burundi. Despite the order for release, the Public Prosecutor
allegedly refused to process his release and as a result, the Applicant remained in jail
until 17th February, 2012.
The applicant averred that Burundi contravened internationally recognized tenets

and principles of good governance and specifically Article 6(d) of the Treaty by
unlawfully detaining him and he sought his immediate and unconditional release.
The 1st Respondent averred that the detention was lawful under Burundi’s Criminal
Procedure Code and that there was an appeal against the Applicant’s release order.
On 5th September 2013, the Court of Appeal quashed the judgment of the First
Instance Tribunal in effect confirming the Applicant’s preventive detention order.
Furthermore, the matter complained related to human rights and was vested in the
National Courts of Burundi pursuant to Article 27(2) and 30 (3) of the Treaty and
thus the Court had no jurisdiction to hear the reference.
Held:
1. The mere inclusion of allegations of human rights violations in a Reference would
not deter the Court from exercising its interpretative jurisdiction under Article 27
(1) of the Treaty.
Prof. Nyamoya v AG Burundi and another
321
2. The Court had no jurisdiction to make declaratory orders relating to the Applicant’s
right to enjoy his freedom according to the judgment of Tribunal of First Instance
of Bujumbura or to order his release as this was properly conferred on the National
Courts of Burundi.
3. The Applicant’s Reference was lodged more than 16 days after the expiry of the two-
month time-limit prescribed by Article 30 (2) of the Treaty. It was therefore time-
barred.
Cases cited:
Independent Medico Legal Unit v. Attorney General of the Republic of Kenya, EACJ
Modern Holdings Limited v Attorney General of Kenya, EACJ Reference 1 of 2008
Omar Awadh & 6 Others v Attorney General of Kenya, EACJ Appeal No. 2 of 2012
Re Owners of Motor Vessel ‘Lilian S’ v. Caltex Oil(K) Ltd [1989]KLR 1
Samuel Mukira Mohochi v The Attorney General of the Republic of Uganda, EACJ Ref.
No. 5 of 2011
Judgment
Introduction
1. This Reference was lodged in this Court on 14th October 2011. Before the Reference
could be heard, the Applicant filed an amended Reference which was lodged on 31st
October 2012. The said Reference is premised on Articles 3 (3) (b), 6 (d), 7 (2), 8
(4), 27 (1) and 30 (1) and (2) of the Treaty for the Establishment of the East African
Community and Rules 1(2) and 24 of East African Community Rules of Procedure
(hereinafter referred to as the “Treaty” and the ”Rules”, respectively).
2. Professor Nyamoya Francois (hereinafter referred to as the “Applicant”) is a resident
of Bujumbura in the Republic of Burundi. He is an advocate and a spokesperson of
one of the Opposition Political Parties in Burundi and his address for the purposes
of this Reference is indicated as care of Mr. Isidoire Rufyikiri, Batonnier of Burundi
Bar Association, Rue du Muscee, No. 3, B.P. 1745, Bujumbura, Burundi.
3. The 1st Respondent is the Attorney General of the Republic of Burundi and he is
sued in his capacity as the Principal Legal Adviser of the Government of the Republic
of Burundi . His address is given as care of the Minister of Justice and Keeper of the
Seal, Republic of Burundi, P. O. Box 1870, Bujumbura, Burundi.
4. The 2nd Respondent is the Secretary General of the East African Community
(hereinafter referred to as the “Community”). He is sued in his capacity as the
Principal Executive Officer of the Community pursuant to his mandate under
Articles 4(3), 29 and 71 of the Treaty. His address is EAC Headquarters, Barabara ya
Afrika Mashariki, P. O. Box 1096, Arusha, Tanzania.
Representation
5. The Applicant was represented by Mr. Richard Onsongo. Mr. Nester Kayobera
appeared for the First Respondent whereas Mr. Wilbert Kaahwa appeared for the
Second Respondent.
322
6. The Applicant’s case can be deduced from his pleadings, the accompanying affidavit
of one Onesime Kabayabayo sworn on 30th August 2012, the affidavit of one James
Aggrey Mwamu sworn on 22nd February 2013 as well as his submissions filed on
10th Mary 2013.
7. In a nutshell, his case is as follows: On 28th July 2011, he was arrested on the
orders of the Public Prosecutor of Burundi for alleged subornation of witnesses in a
criminal matter which involved the murder of one, Dr. Kassim Allan, in a case that
was instituted sometime in 2003. On 19th August 2011, the Public Prosecutor took
the Applicant to the court -in - charge of confirmation of detention in the Tribunal
of First Instance of Bujumbura.
8. The said Tribunal, after deliberation, provisionally released him and further ordered
that its decision was to be executed immediately pursuant to the provision of Article
84 of the Penal Procedure, Laws of Burundi. The aforegoing notwithstanding, the
Public Prosecutor allegedly arbitrarily refused to deliver the necessary documents
for his release and as a result, the Applicant remained in jail in the absence of any
supporting documents for his further incarceration.
9. It is his contention therefore, that the harassment, arbitral and unlawful detention
that he was subjected to by agents of the Government of Burundi contravened
internationally recognized tenets and principles of good governance and specifically
Article 6(d) of the Treaty.
10. It is also the Applicant’s case that the matter in question was widely reported in the
print and electronic media both locally in Burundi and internationally but the 2nd
Respondent failed to fulfill his obligations under Articles 29 and 71(1)(d) of the
Treaty and failed to intervene in the matter.
11. For the reasons above, the Applicant prays for the following declarations and orders
from this Court:
a) That keeping him in detention is an infringement of Article 6(d) and 71 (1) (d)
of the Treaty and that the said action is null and void.
b) That the Secretary General failed to fulfill his obligations under Article 29 and
71 (1)(d) of the Treaty; and
c) He has a full right to enjoy his freedom; and
d) An order should be issued that he, be immediately released unconditionally.
e) Costs of the Reference.
1st Respondent’s case

12. In his Response to the Amended Reference, filed on 22nd February 2013 and in
his written submissions filed on 6th November 2013, the 1st Respondent admits
that the Applicant was arrested and detained as alleged but avers that the said acts
were done in accordance with the laws of the Republic of Burundi, specifically
Article 265 of the 1981 Burundi Penal Code ( repealed in April 2013). He further
avers that although the First Instance Tribunal at Bujumbura ordered provisional
release of the Applicant, the Public Prosecutor, in accordance with Article 84 (2) of
the Burundi Criminal Procedure Code ,re-arrested him and retained him in lawful
preventive detention. He also states that subsequently ,the said Public Prosecutor,
323
immediately the Applicant’s release order was issued, appealed to the Court of
Appeal of Bujumbura against the said order and on 5th September 2013, the Court of
Appeal quashed the judgment of the First Instance Tribunal and in effect confirmed
the Applicant’s preventive detention order.
13. It is on the basis of the foregoing that the 1st Respondent finally avers that the arrest
and detention of the Applicant was lawful and that the Applicant cannot now be
heard to say that the provisions of Article 6 (d) of the Treaty were violated by agents
of the Government of Burundi.
14. Further, it is also the 1st Respondent’s contention that the matter complained of
is one that relates to human rights and is vested in the National Courts of Burundi
pursuant to Article 27(2) and 30 (3) of the Treaty and therefore no jurisdiction
is thereby conferred on this Court. In any event, that the Applicant was granted
provisional release on 17th February 2012 and since then he is no longer in detention
and his complaints are therefore baseless.
15. The 1st Respondent finally contends that the Applicant is not entitled to the remedies
sought and the Amended Reference should be dismissed with costs.
The case for the 2nd Respondent

16. The 2nd Respondent’s case rests on his response filed on 9th November 2012
which is supported by the affidavit of Dr. Julius Tangus Rotich, the then Deputy
Secretary General of the Community, filed on 9th November 2012 and another by
Ms.Jesca Eriyo, Deputy Secretary General, filed on 27th February 2013 as well as
his written submissions filed on 14th June 2013. Mr. Kaahwa, learned Counsel for
the Community, later highlighted those submissions when the matter came up for
hearing on 6th November 2013.
17. It is the 2nd Respondent’s case that firstly ,the instant Reference is time-barred
because while the Applicant was arrested on 28th July 2011,the Reference was filed
on 14th October 201 in breach of Article 30 (2) of the Treaty which obligates any
party claiming a violation of the Treaty to institute any proceedings in this Court
within two months of the Act, regulation, directive, decision or action complained
of.
18. Secondly, that he was irregularly impleaded without leave of Court and contrary
to the requirement of pleadings that amendments must be highlighted in distinct
colour appended to the original pleading.
19. Thirdly, the 2nd Respondent also firmly maintains that his conduct has been
consistent with the requirements of his office and that he has discharged his
obligations in accordance with the Treaty and, therefore, there are no grounds for
the grant of the reliefs sought by the Applicant against him and consequently prays
that the Reference be dismissed with costs.
20. At a Scheduling Conference held on 23rd January 2013, all the Parties were in
agreement that there are triable issues based on the provisions of Articles 6, 27, 29
and 30 of the Treaty.
21. The issues that were framed and agreed for adjudication are therefore as follows:-
324
i) Whether the East African Court of Justice has jurisdiction to entertain the
Reference.
ii) Whether the actions, omissions and commissions of the 1st Respondent infringe
on the Treaty for the Establishment of the East African Community.
iii) Whether the 2nd Respondent has failed to fulfill his obligations under Articles
29 and 71 (1) (d) of the Treaty and ;
iv) Whether the Applicant is entitled to the declaratory Orders he seeks.
22. We also deem it important to note at this stage that the issues raised by the 2nd
Respondent by way of Preliminary Objection and which were argued at the hearing,
will require our determination for reasons to be seen shortly.
23. We also propose to determine the issue of Jurisdiction first because without it there
is nothing ; and if we find that we have no jurisdiction then we must down our
judicial tools and take no further step(see Re Owners of Motor Vessel ‘Lilian S’ vs
Caltex Oil(K) Ltd [1989]KLR 1)
Consideration and determination of Issue No(1) - Whether the East African Court of
Justice has jurisdiction to entertain the Reference
Submissions
24. The question as to whether this Court has jurisdiction to entertain the Reference was
raised by the 1st Respondent in his response to the Amended Reference filed on 22nd
February 2013.
The Applicant’s Submissions

25. Mr. Onsongo ,who argued the case for the Applicant ,was emphatic that this Court
has jurisdiction to entertain the Reference and that Article 30 of the Treaty confers
jurisdiction on any litigant resident in a Partner State of the East African Community
to institute proceedings alleging that there is a violation of the Treaty. It is also his
submission that any such litigant has direct access to the Court for the determination
of any issue relating to infringement of the Treaty without the requirement for the
exhaustion of local remedies.
26. He further contends that by dint of the provisions of Article 30 (1) of the Treaty, the
instant Reference is properly before the Court and that pursuant to the aforesaid
provisions of the Treaty, not unlike each of the Partner States, the Republic of Burundi
has undertaken to honour its commitments in respect of other multinational and
international organizations of which it is a member.
27. He further submits that in determining a matter in question under the above Article,
the Court is required to review the lawfulness of that matter and whether it amounts
to an infringement of the Treaty.
28. In response to the 1st Respondent’s assertion that the cause of action in this
Reference relates to alleged violations of human rights and therefore outside the
jurisdiction of the Court, Counsel argued that the 1st Respondent’ s contention is
erroneous and that on the contrary, while agreeing that the jurisdiction of this
Court is subject to the proviso contained in Article 27 of the Treaty, the crux of the
Applicant’s plea, as exhibited in the Reference, is that the actions complained of are
breaches of Burundi’s obligations not only under international law generally e.g.
325
under the Bangalore Principles of Judicial conduct, 2002 but also under Article 6
(d) of the Treaty.
29. It is on this basis of the foregoing, that the Applicant is asking the Court to pronounce
itself on the alleged breaches of the said Treaty obligations by Burundi in light of his
grievances, namely that the three arms of government have come together and have
acted to deny him his freedom.
30. Finally, relying on the authority of James Katabazi & 21 Others Vs. Secretary General
of the East African Community – Reference No. 1 of 2007, Counsel submitted that
this Court’s jurisdiction is not ousted merely because the acts complained of are
based on allegations of human rights violation and that following the Katabazi case
(supra), this Court should not abdicate from its duty to interpret the Treaty even if
the issues raised in the Reference may touch on human rights.
1st Respondent’s Submissions

31. Mr. Nestor Kayobera, for the 1st Respondent, in a nutshell submitted that while this
Court has jurisdiction to hear and determine the Reference in respect of prayers
(a), (b) and (c) of the said Reference, it lacks jurisdiction in respect of other prayers
basically for the following reasons:
a) That the Court’s jurisdiction ought to be in accordance with Articles 27(1), (2)
and 30 (3) of the Treaty and that under Article 27(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’.
That because the instant Reference is premised on allegations of human
rights violations, this Court lacks jurisdiction to try such violations unless
the jurisdiction of this Court is extended or a protocol to do so, is concluded.
Counsel stressed that the jurisdiction of the Court to entertain human rights
disputes still awaits the operationalisation of a Protocol under Article 27 (2) of
the Treaty and without it there cannot be jurisdiction to address such issues .
b) Counsel concluded his submission in respect of this issue by contending that
the instant case is different from and can be distinguished from the case of
Attorney General of the Republic of Rwanda Vs. Plaxeda Rugumba – EACJ Appeal
No. 1 of 2012 because the Applicant in the instant matter ,unlike the subject
of the Rugumba case, had not at any material time been detained in violation
of Burundi national laws, a fact that was admitted by the Attorney General of
Rwanda in Rugumba, nor has the Applicant been held incommunicado and in
ignorance of his charges.
Counsel went on to say that it has in fact been shown that the legality of the
Applicant’s detention was affirmed by the Court of Appeal of Burundi after
determining the Appeal by the Public Prosecutor in that regard.
32. In view of the aforegoing, Counsel for the 1st Respondent urges this Court to declare
itself incompetent to hear and determine the instant Reference.
326
2nd Respondent’s submission
33. Mr. Wilbert Kaahwa, Counsel to the Community, advocating the case for the 2nd
Respondent had the following to say in answer to the issue of want of jurisdiction:
(a) That this Court derives its mandate from Articles 23 (1), 27 (1) and 30 (1) of the
Treaty. In Article 23 (1) the Treaty provides that:
“The Court shall be a judicial body which shall ensure the adherence of law in the
interpretation and application of and compliance with the Treaty.”
The Treaty then provides in Article 27 (1) that:
“The Court shall initially have jurisdiction over the interpretation and application
of this Treaty.”
34. It is Counsel’s argument that the Treaty makes provision, for reference by natural or
legal persons on any matter that infringes the Treaty or whose legality is disputable,
to the Court under Article 30 of the said Treaty for determination and contended
that the issue of jurisdiction of this Court was settled in;
i) EACJ Reference No. 1 of 2006: Prof. Peter Anyang’ Nyong’o and 10 Others Vs.
Attorney General of Kenya & 3 Others
ii) EACJ Reference No. 3 of 2010; Independent Medico Legal Unit Vs. Attorney
General of the Republic of Kenya (commonly known as the IMLU case) and;
iii) EACJ Reference No. 9 of 2012 – The East African Centre for Trade Policy and Law
Vs. The Secretary General of the East African Community.
35. His further argument was that in all the above cases, this Court found and held that
it has jurisdiction to determine matters under the Treaty notwithstanding the fact
that some of the claims had the inclusion of allegations of violations of human
rights.
36. Counsel observed and noted in that regard that in the instant matter, the Applicant
seeks five remedies, some of which fall outside the jurisdiction of this Court and
further argued that only the remedies sought under paragraphs (a), (b) and (e) of
the Reference may be granted by the Court in exercise of its interpretive jurisdiction
under Article 27(1) of the Treaty if proved by the Applicant and referred us to the
decisions in the Rugumba case (supra) and the Katabazi case (supra) in support of
that submission.
37. Counsel concluded by submitting that this Court has jurisdiction to entertain only
some parts of the Reference and not the whole of it contrary to submissions on behalf
of the Applicant.
Decision of the Court on Issue No. 1

38. We have examined at substantial length the submissions of all the learned Counsel
in respect of the issue now in question. It is plainly clear from their submissions
that they are generally in agreement that the remedies sought under paragraphs (a),
(b) and (e) of the instant Reference may be granted by this Court in exercise of its
interpretative jurisdiction subject to the usual standard of proof by the Applicant.
39. In view of the foregoing, we have found it necessary, for ease of reference, to
reproduce the prayers in question. They are as follows:
“(a) A declaration that the decision of keeping Professor Francois Nyamoya in
detention as mentioned above is an infringement of Article 6 of the Treaty for
327
the Establishment of the East African Community and that it is null and void;
(b) A declaration that the 2nd Respondent failed to fulfill his obligations under
Articles 29 and 71 of the Treaty establishing the East African Community;
(c) Declare that the Applicant has a full right to enjoy his freedom according to the
judgment of Tribunal of First Instance of Bujumbura
(d) Order that Professor Nyamoya Francois be immediately released without any
conditions.
(e) Costs of this Reference”
40. We are persuaded by the reasoning of learned Counsel for the 2nd Respondent
and we fully associate ourselves with his submission that this Court has jurisdiction
to entertain prayers (a), (b) and (e) of the Reference now before us.
41. Further to the foregoing, we wish to reiterate what this Court has consistently
maintained/ held that the mere inclusion of allegations of human rights violations
in a Reference will not deter this Court from exercising its interpretative jurisdiction
under Article 27 (1) of the Treaty. (See for example the Katabazi case (supra), the
Rugumba case (supra), the case of Omar Awadh & 6 Others vs Attorney General of
Kenya, EACJ Appeal No. 2 of 2012 and EACJ Ref. No. 5 of 2011 – Samuel Mukira
Mohochi Vs. The Attorney General of the Republic of Uganda)
42. Without belabouring the point, we find and hold that this Court has jurisdiction
to entertain the Reference in so far as prayers (a), (b) and (e) of the Reference are
concerned.
43. As regards prayers (c ) and (d),we have no jurisdiction to make such orders and
we decline the invitation to perform the duties properly conferred on the National
Courts of Burundi.
Preliminary Objection
44. Although a preliminary objection should ordinarily be raised at the earliest stage
of any legal proceeding, we deem the one raised by the 2nd Respondent sufficiently
important to address in this Judgment.
On amendment of the Reference

45. In Modern Holdings Limited vs Attorney General of Kenya,EACJ Ref.1 of 2008, this
Court upheld an objection on the basis that a proper preliminary objection must
be a pure point of law whose determination would bring the dispute to a quick
resolution. In that regard and noting the twin objections by Mr.Kaahwa, the one
that the Reference was unprocedurally amended and that the 2nd Respondent was
improperly impleaded ,portends no difficulty at all.
46. We say so, with respect ,because a clear reading of the record in this matter would
show that when Counsel for the Applicant appeared before us on 13th July 2012,an
adjournment was granted for him to do certain things including amending the
Reference. By that time, pleadings had not closed under Rule 45 of this Court’s Rules
of Procedure and therefore under Rule 48(a) of the said Rules, he did not require
any leave to amend the Reference and introduce the 2nd Respondent as a party to
the proceedings. He therefore properly amended the Reference and our finding is
that this limb of the objection is not supported by the law and the record and is
328
consequently overruled.
47. Regarding the physical and visual manner of effecting an amendment, Rule 49 of
the Rules merely requires a party after amending a pleading to deposit the amended
version in the Registry and that is what the Applicant did on 31st August 2012 and
after service thereof, the 2nd Respondent became a party to the proceedings and duly
responded to the Amended Reference. There is no express provision in the Rules
similar to that found for example in the Civil Procedure Rules of Kenya, Uganda
and Tanzania that red, blue and green colours be used in showing the effected
amendments against the original pleading. The Amended Reference in any event
indicates the amended portions of the original Reference and we are satisfied that
it meets all the requirements of an amended pleading. That limb of the objection is
therefore similarly misguided and is overruled.
On whether the Reference is time-barred

48. Turning to the question whether the Reference as amended is time-barred, from the
submissions made ,the following facts clearly emerge;
From the Applicant’s own pleadings and from the supporting Affidavit of one
Onesime Kabayabaya ,the Applicant was arrested on 28th July 2011 while the
Reference was lodged on 14th October 2011 and amended on 31st August 2012 .
49. It is Mr. Kaahwa’s argument that in view of the limitation period set out by Article
30(2) of the Treaty the Reference was filed out of time and is therefore time –
barred. The said Article states that:
the case may be.”
50. It has been further argued by Mr. Kaahwa that the starting date of an act complained
of under the provision of Article 30 (2) of the Treaty is not the day the act ends, but
the day when it is first effected and contends that both justice and equity abhor a
claimant’s indolence or sloth which is the case in the present Reference.
51. In support of his stance, he referred us to the decisions of this Court in Omar Awadh
and IMLU (supra) and submitted that on the basis of those decisions , the Applicant
in the present Reference cannot argue that computation of time can only commence
after the cessation of his detention as any argument premised on continued breach
militates against the very spirit and grain of the principle of legal certainty.
52. It is therefore his case that since the Reference was filed outside the time limit
prescribed by Article 30(2) aforesaid, the same should be struck off with costs.
53. As can be gleaned from the record, specifically the proceedings of 6th November
2013, Mr. Onsongo, learned Counsel for the Applicant, was very brief in his rebuttal
on this point. It was his main argument that the complaint does not relate to the exact
date and point of arrest and detention. That the Applicant is basically arguing against
an unlawful set of activities and that the process which led to his incarceration and
denial of freedom of movement was unprocedural; and so the issue of limitation
of time cannot arise in the circumstances; and the objection should therefore be
overruled.
329
54. The 1st Respondent made no submissions on the preliminary objections raised by
Mr. Kaahwa.
Decision of the Court

55. We have carefully considered the rival submissions of the Parties in support of their
respective positions regarding the above issues. It is common ground, as is evident
from the affidavits in support of their respective pleadings, that the acts complained
of (the arrest, detention and alleged denial of freedom of movement of the Applicant)
happened between 28th July 2011 and 17th February, 2012 when he was released
(see paragraph 2 of Onesime Kabayabaya’s affidavit sworn on 30th August 2012 in
support of the Reference). It is further common ground that the instant Reference
was lodged in this court on 14th October 2011 and amended on 31st August 2012.
56. It is glaringly clear from the foregoing that the Applicant lodged his Reference more
than 16 days after the expiry of the two-months time-limit prescribed by Article 30
(2) of the Treaty.
57. It is now settled law as amply demonstrated in the decisions of this Court that Mr.
Kaahwa has made reference to, that the computation of time starts on the date of
the unlawful act act complained of, and not the day that the act ends –See Omar
Awadh’s case [supra] and the Independent Medico Legal Unit case (supra).Time
therefore started running on 28th July 2011 and stopped running on 28th September
2011.
58. Mr Onsongo, in rebuttal to Mr. Kaahwa’s arguments on this point, contends that his
client’s main grievance is “the process that led to the incarceration and the denial
of freedom of movement “. He submits that the whole process was conducted
unprocedurally. With due respect to him, we do not find merit in this argument.
He cannot, in our candid view, afford himself the argument to the effect that Article
30(2) of the Treaty as regards the computation of time to institute proceeding does
not apply to the matter now before us. This is precisely what he is saying and is now
inviting us to buy his novel argument. With unfeigned respect to him, we decline his
invitation to do so.
59. On the contrary, we are in full agreement with Counsel for the 2nd Respondent on
his objection and further add that the principle of legal certainty that was enunciated
in the Omar Awadh case (supra) and the Independent Medical Legal Unit case
(supra) requires strict application.
60. In view of all the foregoing, we hasten to conclude that the Applicant filed his
Reference out of the prescribed time and that action consequently spells out the
obvious ;that the instant Reference has not complied with the strict provisions of
Article 30 (2) of the Treaty and having said so, we hereby emphatically hold that it is
time-barred and we shall make the necessary orders at the end of this Judgment.
Issues Nos. 2, 3 and 4

61. In light of the above, we refrain from entertaining the remaining issues for the one
obvious and simple reason that the Reference is no longer alive and any attempt at
determining those issues will be a mere academic exercise.
330
Conclusion
62. Before taking leave of the Reference we are constrained to reiterate the remarks of
Lady Justice Arach Amoko ( DPJ, as she then was) made on 6th November 2013
when the matter was before us for highlighting of the written submissions lodged
by all the Parties in this Reference. The remarks were in respect of compliance with
the Rules of Procedure of this Court. It behoves us at this juncture to remind all
who are coming to this Court to observe the Rules of Procedure of this Court. In
the Reference now before us, all Parties have on several occasions fallen prey to the
non-observance of the Rules of Procedure of this Court and specifically the Rule that
requires filing of authorities. As a result, on more than two occasions, this Court was
compelled to invoke its inherent powers under Rule 1 (2) of the Rules of Procedure,
2013 to admit documents that were filed outside the time stipulated by the Rules.
63. We think that it is high time that we reminded all persons (advocates in particular)
who appear before this Court to comply with the said Court Rules and to strictly
adhere to them. Rules were made for a purpose and that purpose was for orderly
conduct of our business in this Court. We are alive to the fact that the Rules of
Procedure are only hand maidens of justice and they should not be used to defeat
substantive justice , but it is our pious hope and prayer that our remarks will bear
fruit and that we shall see no more of what transpired in the instant Reference.
Final Orders;
(a) For the reasons we have given, the Reference is dismissed
(b) As for costs, we endeavour to say that given the peculiar circumstances of this
case, we deem it just that each Party shall bear its own costs.
It is so ordered.
****
Legal Brains Trust (LBT) Limited And Attorney General of Uganda
Johnston Busingye, PJ; Mary Stella Arach-Amoko, DPJ; John Mkwawa, J; Jean Bosco
Butasi, J; Isaac Lenaola, J
March 30, 2012
Consistency in Treaty Interpretation -EALA re-election - Partner State discretion-

Maximum terms of EALA members- Newspaper articles not legal authorities- No locus
standi to request for an Advisory Opinion-Whether a Member of the EALA could only
hold office for a maximum of two terms- Whether the Attorney General of Uganda
infringed the Treaty.
Articles 23, 27,30, 36 and 51 (1) of the Treaty for the Establishment of the East African
Community - Rules 1(2) and 24 of the East African Court of Justice Rules of Procedure,
2010 -Articles 31 and 32 of the Vienna Convention on the Law of Treaties.
In a letter dated 25th August 2011, the Speaker of the Parliament of Uganda wrote to
the Respondent seeking an advisory opinion from the East African Court of Justice
(the EACJ) on the interpretation of Article 51 (1) of the Treaty. This was due to
the divergent views on the interpretation of the Article specifically as regards the
phrase “for afurther term of five years”. Clarity was required due to the East African
Legislative Assembly elections that were due to be held that year.
The Respondent did not seek the advisory opinion as requested, but instead
interpreted the Article and advised the Speaker vide his letter dated 24th November
2011.
The applicant, a limited liability company, whose main objective is, inter alia, to defend
the rule of law, democracy and good governance, came across the interpretation and
formed the view that the interpretation was erroneous, unlawful and that if that
matter was not resolved, it would lead to litigation which would adversely affect the
smooth functioning of the EALA. Thus the Applicant filed this Reference seeking the
Court’s interpretation.
Held:
1. Article 51(1) provides that an elected member shall hold office for five years and be
eligible for re-election for a further term of five years. This means that upon election
to office, a member serves five years and he or she is then eligible for re-election for
a further term of five years. The member can also serve only one term of five years if
not re-elected. The total period is ten years.
2. On tenure of EALA members, Article 51(1) states that the tenure is not renewable
perpetually.
332
3. A State Party should be left to exercise its discretion as to which matters are referred
to this Court for advisory opinion. The Respondent in resorting to interpret the
Treaty instead of making a request for an advisory opinion, did not infringe the
Treaty but failed to exercise his discretion judiciously.
4. The need for consistency in interpretation of Treaty provisions, should make it
imperative for Partner States to refer questions of interpretation of the Treaty to
the East African Court of Justice which is the organ established, inter alia, for that
purpose
Cases cited:
Pinner v Everrett (1969) ALL ER 258
Prof. Peter Anyang Nyongo and Others v Attorney General of Kenya, EACJ Ref.No. 1
of 2006
Queen v Brocklehurst (1892) QB 566
The East African Law Society & 4 others vThe Attorney General of the Republic of Kenya
& 3 others, EACJ
Editorial Note: In Appeal No 4 of 2014, the Appellate Division vacated the judgment of
the trial court as being moot holding that: the Reference raised hypothetical and academic
questions; and that the Applicant had no locus standi to seek an Advisory Opinion.
Judgment
Introduction:
1. This is a Reference by Legal Brains Trust Ltd, (the Applicant) under Articles 23,
27 and 30 of the Treaty for the Establishment of the East African Community (the
Treaty) and Rules 1(2) and 24 of the East African Court of Justice Rules of Procedure
(2010). The Reference seeks the interpretation of Article 51 (1) of the Treaty which
provides that:
“ Subject to this Article, an elected member of the Assembly shall hold office for five
years and be eligible for re-election for a further term of five years.”
Background:
2. The Speaker of the Parliament of Uganda wrote to the Respondent a letter dated
25th August 2011, requesting him to seek an advisory opinion from the East African
Court of Justice (the EACJ) on the interpretation of Article 51 (1) of the Treaty,
because she had received two divergent views on the interpretation of the Article
specifically as regards the phrase “for a further term of five years”. One school of
thought suggests that the phrase means that a member is free to seek re-election
every time a term of the East African Legislative Assembly (the EALA) comes to an
end. The second interpretation is that EALA members shall serve for two terms only.
3. The Speaker stated in her letter that Article 51(1) was incorporated in the Uganda
Rules of Procedure of Parliament and she did not want to be faced with the same
issue of conflicting interpretation during the forthcoming EALA elections due this
year.
Legal Brains Trust Ltd v AG Uganda
333
4. Upon receipt and perusal of the said letter, the Attorney General, the Respondent
herein, was of the view that this was not a question of law but it was a matter that
he could handle using his constitutional mandate as the principal legal advisor of
the government. Consequently, he did not seek the advisory opinion of the EACJ as
requested, but instead went ahead to interpret the Article and advised the Speaker
vide his letter dated 24th November 2011 that:
“Following the literal rule of interpretation, the phrase “a further term of five years”
which uses the article “a” implies that the words following the article “a” being
“further term of five years” are meant to refer to one more term of five years.
Accordingly, the phrase “a further term of five years” means that the elected members
are eligible to hold office for another term or a second term which will run for five
years thereby making their total tenure as two terms only”.
5. The Applicant, a limited liability company, whose main objective is stated to be,
inter alia, to defend the rule of law, democracy and good governance in the region,
stated that, when it came across the interpretation of Article 51(1) by Respondent,
it formed the view that the interpretation was erroneous, unlawful and if the issue
is not resolved by this Court, it is likely to once again lead to litigation which will
adversely affect the smooth functioning of the EALA. It therefore filed this Reference
and prayed for orders:
(a) That the decision of the Respondent to the effect that a Member of the East African
Legislative Assembly can only hold office for two terms is unlawful.
(b) That the said decision infringes the provisions of the Treaty.
The Applicant also prayed that the costs of the reference be provided for.
6. The Respondent filed a response in which he denied the allegations set out in the
reference and contended that his action was lawful and constitutional in his capacity
as the Principal Legal Advisor to the Government of Uganda.
In the premises, the Respondent averred that the reference has no merit and prayed
for its dismissal with costs.
Issues:
7. At the scheduling conference held on the 24th February 2012, three issues were
agreed upon for determination by the Court , namely:
(1) Whether under Article 51(1) of the Treaty, a Member of the EALA can only hold
office for a maximum of two terms.
(2) Whether it was an infringement of the Treaty for the Attorney General of Uganda
to interpret Article 50 (1) of the Treaty.
(3) Whether the Applicant is entitled to the remedies sought.
8. It was further agreed by both parties that the evidence was to be by way of affidavits.
The said affidavits were namely, that of Mr. Isaac Kimaza Ssemekede, the Executive
Director of the Applicant filed in support of the Reference and that of Hon. Peter
Nyombi, the Attorney General of Uganda, filed in support of the response.
Counsel requested the Court dispense with oral arguments due to the urgency of the
matter and we allowed them.
334
Resolution of the issues:
Issue No. 1: Whether under Article 51(1) of the Treaty, a member of EALA can only
hold office for a maximum of two terms:
Submissions by Counsel for the Applicant:

9. Learned Counsel for the Applicant Mr. Wandera Ogalo submitted that: The reference
seeks the interpretation of Article 51(1) of the Treaty which reads:
“Subject to this Article, an elected member for the assembly shall hold office for five
years and be eligible for re-election for a further term of five years.
10. The law applicable to the interpretation of the Treaty was laid down by this Court in
Ref. No. 1 of 2006 – Peter Anyang Nyongo and Others –v – Attorney General of Kenya
and others, citing Article 31 of the Vienna Convention on the law of Treaties. It is
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 light of
2. The context for the purpose of interpretation of a treaty shall comprise, in
addition to the text ...”
In applying the above principles to the issue before us, Mr. Ogalo divided his
submissions into sub-headings A and B.
A – The Ordinary meaning of the words:
11. Under this sub-heading, Mr. Ogalo submitted that the specific words requiring
interpretation in his view, are “a further term”. The Respondent at page 2 of his letter
which is Annexture “C” to the Reference, gives his understanding of the meaning
of those words where he stated that “accordingly the phrase “a furtherterm of five
years” means that the elected members are eligible to hold office for another term or
a second term which will run for five years thereby making their total tenure as two
terms only”.
12. The Annexture was signed personally by the Hon. Peter Nyombi, the Attorney
General and in Mr. Ogalo’s view, the Respondent was in fact giving an alternative
meaning to the phrase. The first is that it means “another term” and secondly that it
can mean “a second term.”
13. According to Mr. Ogalo, the ordinary and natural meaning of the words “a further
term” cannot by any stretch of imagination equal “a second term”. To say so is a
curious argument that would appeal any English speaking person.
A “second” is specific and limiting. It means number two. While “a further” has no
aspect of limitation attached to it.
14. Firstly, he entirely agreed with the first meaning given by the Respondent that a
“a further term of five years simply means another term of five years”, but contended
that the last part where the Respondent says “thereby making their tenure two terms
only” is incorrect. His argument is that, by adding these words, the Respondent
imported into the phrase being interpreted, something entirely new. This was
therefore, the Respondent’s conclusion, not the interpretation of the phrase for
interpretation.
15. Secondly, Mr. Ogalo contended that in the context of the whole sentence, the
335
question to ask is: what is “and be eligible for re- election?”. In his view, to claim
that the words limit the number of terms is to read and “eligible for re-election”
in isolation from the words “ for a further term of five years.” When the two are
put together, it is clear that eligibility for re-election is for a further terms (sic) of
five years. It is eligibility for re-election which creates a right for another term.
Therefore, a further term of five years can only make sense when there is eligibility
for re-election. Without eligibility for re-election, there can be no “ further term
of five years”. In Mr. Ogalo’s view, reading the words in the context of the whole
sentence leads to one conclusion: the words in issue are tied to “ eligibility” and not
to term limits.
16. In an effort to prove his point that the ordinary and natural meaning of the phrase
“a further term” creates no limitation to two terms as the Respondent appears to
think, Mr. Ogalo reproduced the following examples which he had downloaded
from the internet:
17. Jomo Kenyatta (from Wikipedia p.6):
“On 29th January 1970, he was sworn as President for a further term. For the
remainder of the presidency ... Kenyatta was again re-elected as President in 1974,
in elections which he, again, ran alone. On 5th November 1974, he was sworn in as
President for a third term”.
18. He submitted that if the Respondent’s interpretation is right, it means that when
Jomo Kenyatta was sworn in on the 29th January 1970, that was the last term and
he would not be eligible to stand again for President. Yet we see him standing for
another term. We see the words sworn in for “a third term”. Clearly, the words “a
further term” meant and mean “another term”. The writer used them well aware that
he would a few minutes later write that Jomo Kenyatta stood for a third term.
2. An English news article published on the 23rd November, 2011 read: “Engineer
Philip Okundi’s term as CCK chair extended by “a further 3 years”.
19. According to a press release from the CCK circulated today, President Mwai Kibaki
has made the appointment through a Kenya Gazette notice in accordance with
Section 6 (1) (a) of the State Corporation Act, Cap. 446.
20. The re-appointment is effective October 25, 2011 and follows Engineer Okundi’s first
appointment as CCK Board Chairman.”
21. Mr. Ogalo argued that in order to determine the meaning of the phrase “a further
three years” , we need to look at the origin. President Kibaki made the appointment
under section 6(1) (a) of the State Corporations Act, Cap. 446. That section imposes
no limitation of terms of service. It does not contain the words “a further”.
22. It simply empowers the President to appoint the chairman of the Board and indeed
the writer of the article quotes the section. When using the term “afurther term of
three years” he or she was aware that there was no limitation. By using the words,
therefore, he or she clearly meant “another term” and not “one last term”.
23. Mahammed El Baradei: (Wikipedia p.12) : “Comments on no fourth term;
In 2008, El Baradei said that he would not be seeking a fourth term as Director
General. Moreover, he said, in an IAEA document, that he was not available for “a
further term” in office.”
24. Mr. Ogalo submitted that the writer of the article used the phrase “a further term” to
336
mean another term. This is because Mr. Bardei had made a conscious decision not
to run for a third term. It was not the law barring him. He could not have used the
phrase to mean a second or last term because Mr. Baradei had already served three
terms. If the Respondent’s interpretation is right, he could only have used the phrase
after his first term.
25. Jail term:“... Former Argentine dictator Bignone was Thursday handed a further 15
year jail term...”
... The latest sentence against Bignone who had already been sentenced twice, to 25
years in jail and to life imprisonment...”
26. Mr. Ogalo argued that the said newspapers refer to the 15 years as the latest sentence
and not the last sentence. That it would indeed be illogical to reason that even if
other crimes were uncovered, no conviction or sentence would be imposed because
a further 15 years jail term means the second and last sentence.
27. Moreover the article shows that the man had already been convicted twice i.e. already
two terms in jail. The words are obviously used to mean another jail term.
28. The Guardian Newspaper: The heading of the Newspaper is:
“You Tube Saudi woman driver face further 10-day jail term.
A Saudi Arabian woman who posted a video online of herself driving her car is facing
another 10 days in prison, according ..................... from the Kingdom”.
29. According to Mr. Ogalo, this leading British Newspaper was using the word“further”
and“another”interchangeably. They mean the same thing. Constitutional Court of
Slovenia: The writer says:
“Nine judges are elected for a period of nine years with no possibilities of a further
term ...”
30. Mr. Ogalo submitted that it would be illogical to say the term means oneother term
when clearly, “no possibility” exists.
HSBC: “HSBC has agreed a further three year term as global sponsor of FEI ....”
According to Mr. Ogalo,
“a further three year term” was equated to “renewal”.
31. High Commissioner Guterres: “ High Commissioner Guterres seeks mandate
renewal for further five year term.
The UN General Assembly voted on Thursday to renew the mandate of High
Commissioner Antonio Guterres extending his term by a further five years.”
32. Mr. Ogalo contended that in this article, a “ further five years term” heading of the
article is described in the main body of the article as a “renewal” . That this is exactly
what a member of the EALA does. He or she goes for re-election to renew his or her
mandate.
33. Bashir: The author writes: “Bashir sworn in for a further term. Sudan’s President
Omar Hassan Bashir is sworn into office for another five years after disputed
elections.”
34. Mr. Ogalo contended that in this article, the author used “a further term” and
“another five years” interchangeably.
Mr. Ogalo submitted further that, even in statutes, the words are used to mean
“another” as shown below:
35. The Commercial Banking Company of Sydney Incorporation Act:
337
The legislature of New South Wales extended the powers of the bank for a “further
term of ten years”; and whereas the ten years were about to expire, Parliament was
now extending to the bank, power to issue, circulate and re-issue bank notes for “a
further term of twenty one years”.
36. He submitted that if the argument of the Respondent is to be allowed, it would mean
that when the New South Wales Parliament used “a further term of ten years” that
would be the second and last term. Yet we see that after that second term
“a further term of twenty one years is used.”
37. He submitted that in all three occasions, Parliament used the words to mean
“another term”. To hold otherwise, would therefore be illogical as it would mean
that the country would cease to have a legal tender because the words mean“only”
and “last term”. That is absurdity in itself.
38. The Privacy Act of Canada: Section 53 (3) of the 1985 Privacy Act of Canada reads:
“The Privacy Commissioner, on expiration of a first or any subsequent term of office,
is eligible to be re-appointed for a further term not exceeding seven years”.
39. According to Mr. Ogalo, the proper construction to put on that section is that there
is a first term after which the section allows subsequent terms. In other words,
subsequent terms can be one or many. Even after that one (which would be a
second) the holder can still be re-appointed for a further term. There is therefore
the first term, followed by another term or subsequent terms and still the holder is
eligible for a further term. “Further term” is therefore used to mean “another term”.
If “a further term” meant one and that term, the wording of this statute would be at
variance with logic. No one would draft inthat way.
B - Words in their context and in light of the treaty’s objective and purpose:
40. The main thrust of Mr. Ogalo’s submission under this sub-heading is that the
overriding objective and purpose of Article 51 (1) is to prescribe the period of time
when a member holds office. It is simply to tell us that a member shall be in office
for five years. That is the primary objective. The matter of eligibility to be re-elected
is secondary. Therefore the primary objective to prescribe the period of the term
cannot be mixed with disqualification. If it were true that a member is limited to two
terms, then it becomes a disqualification to run for a third term. Such a person would
not be disqualified to be elected. That aspect of non qualification cannot fall under
an article with a heading “Tenure of office of elected members”. In other words,
disqualification cannot be the object and purpose of an article providing tenure.
41. He added that the object and purpose of such article is to provide for the act of
holding office; the terms and conditions while in that office as provided in Article 51
(2) ; and vacation of office as provided in Article 51 (3).
42. He further submitted that the purpose and object of Article 51(1) can be seen in light
of Article 51 (2) and (3) as providing tenure of office rather than disqualification
to hold office. The Article whose purpose is to provide for qualifications and by
implication disqualification, is Article 50(2). One would qualify to be elected
provided he or she has not served two terms.
43. He contended that matters relating to electing members of EALA are provided for in
Article 50(1). These include the Electoral College, number of Members to be elected,
representation and how they shall be elected. After being elected under Article 50
338
(1), a member then holds office under Article 51, and the holding of that office can
be questioned under
Article 52. Each of the three Articles (50, 51 and 52) have a different object and
purpose.
44. Mr Ogalo asserted that, the Respondent, by interpreting the Article in issue as he did,
seeks to mix up the different objects and purposes of the Articles of the Treaty. He
seeks to mix up election with tenure. Election or re-election as well as qualifications
is the subject matter of Article 50. That interpretation is thus erroneous.
45. He averred that the object and purpose of Article 50(1) is not to limit the number
of terms but rather to provide for what happens when the five years come to an end
that is the ability to seek a fresh mandate.
46. To prove his point and to eliminate the Respondent’s interpretation of the said
Article, Mr Ogalo then analysed and compared the words in Article 51(1) to the
following Articles of the Treaty:
(a) Article 67 (4) which provides that “The Secretary General shall serve a fixed five
year term”.
(b) Article 68 (4) which provides that “The Deputy Secretaries General shall each
serve a three year term renewable once”.
(c) Article 53 (1) and (2) which provides that “1. The Speaker of the Assembly shall
be elected ...................... to serve for a period of five years.”
(a) The Speaker of the Assembly “ shall vacate his or her office upon expiry of the
period for which he or she was elected.”
(b) Article 25 (1) provides that “1...................... a Judge appointed under paragraph
1 of Article 24 of this Treaty, shall hold office for a maximum period of seven
years”.
47. He contended that the Treaty provisions in respect of all the above offices are explicit
where they intend to limit the number of years for holding office in the Community.
There is no vagueness. The language is clear and unambiguous. There is no room left
as to whether or not a holder of an office can remain in office after a particular time.
Words such as “a fixed five year term, renewable once” and “a maximum period of
seven years”,show clearly that where the framers of the Treaty intended to limit the
period of service, they said so very clearly.
48. In keeping with that, he further argued, there would have been no reason for them
not to frame Article 51 (1) in the following terms, if the Respondent’s interpretation
is correct:
“... shall hold office for five years and be eligible for re-election for only one other
term of five years”; or
“... shall hold office for five years and be eligible for re-election only once”; or
“... shall not hold office for more than two terms of five years each”.
49. It was Mr. Ogalo’s strong contention that, the fact that the framers of the Treaty
did not use explicit wording in Article 51(1) as they did elsewhere in the Treaty can
only mean that the Respondent’s interpretation is erroneous.
50. Mr. Ogalo submitted further that the Respondent’s argument that the letter “a”
used before the word “further” creates a single term is incorrect. The New Webster
Dictionary defines the letter “a” as “used primarily before nouns in the singular,before
339
collectives which imply a number of persons or things.”

51. The Oxford Advanced Learner’s Dictionary defines the letter ‘a’ inter alia as “used
instead of one before numbers: “a thousand people were there”. Further, the
Dictionary defines the word ‘a’ as “any, every”. The Dictionary then gives an example
of “a lion is a very dangerous animal”. This would therefore equate ‘a’ to “any or
every”. The said Dictionary also defines a noun as “a word that refers to a person, a
place or thing, a quality or an activity.”
52. The word “further” is not a noun. Accordingly, it cannot turn letter “a” into a
singular. Indeed in R vs. Durham Justices (1895) 1 QB 801, it was held that “a” can
mean “any”. In Re Fickus (1900) ICL 331, “a share” was defined to mean “some
share”,
53. In that context therefore, “a further term” can mean “any term” or “every term”.
This is best explained by a member who serves from 2001 to 2006, is not re-elected
for the 2007 – 2012 term but is again elected for the 2012 – 2017 term. The two terms
he or she has served can be equated to “any term”. The 2012 – 2017 term cannot be
called “a further term” for such a member because of the five year gaps between
them. This shows the absurdity of the Respondent’s argument.
54. Mr. Ogalo submitted that further absurdity can be shown by the fact that such
member is not eligible to be elected for the 2017 – 2022 term because the 2001 – 2006
and 2011 – 2017 terms are two terms. The 2001 – 2006, 2011 – 2016 and 2022- 2027
are three non-consecutive terms. The use of “a” in this context is therefore not “one”,
but “any”. A member could as well be elected for those three non-consecutive terms.
It would be illogical to argue that a member who has served two consecutive terms
(2001 – 2011), is not eligible for election for the 2016 – 2022 terms.
55. He argued that the letter “a” before the word “further” is equivalent to “any” not
“one”. That the case of Queen V Brocklehurst (1892) QB 566 throws more light on
the word “further”. In that case, the question was, what the meaning of “further
proceedings” is. A .L. Smith J stated that the definition placed upon that expression by
the guardians that “further proceedings” means “a fresh start” was right. Therefore,
“a further term” means “a fresh start”. A member is eligible to be elected anew. It is
a fresh start.
56. He concluded his argument on this point by stating that, in his interpretation of
Article 51(1) of the Treaty, the Respondent applied the law on interpretation of
statutes. Had he applied the law on interpretation of treaties instead of the law of
statutes, there is a possibility that he would have reached a different conclusion. He
appears to regard the Treaty as an Act of Parliament, which is a grave misdirection.
Submission by the Respondent’s Counsel:

57. In response to Mr. Ogalo’s submissions, Learned State Attorneys M/s Margaret
Nabakooza and Mr. Kasibayo Kosia ( learned counsel for the Respondent) supported
the interpretation by the Respondent in its totality and submitted that a member of
the EALA is eligible for re-election only once, hence he or she can only hold office as
a member of the EALA for only two terms,
58. They, however, agreed with Mr. Ogalo on the law on interpretation of treaties as
stated in the Anyang Nyong’o Reference(supra) as the Vienna Convention on the Law
340
of Treaties.
59. Apart from that, Counsel for the Respondent were of the view that the rules that
govern interpretation of treaties and statutes are not very different from each other.
They pointed out that the literal rule of interpretation also applies in that words are
given their natural and ordinary meaning.
60. They referred us to Sir Rupert Cross On Statutory Interpretation , 3rd Edn. 1995, p. 1
where the author states that :
“... the essential rule is that words generally be given the meaning which the normal
speaker of the English language would understand them to bear in the context in
which they are used.”
61. Counsel for the Respondent also relied on Maxwell on Interpretation of Statutes,
12th Edition by J. Langon, Chapter 2: General Principles of Interpretation; where
it is stated that the first and most elementary rule of construction is that it is to
be assumed that the words and phrases of a technical legislation are used in their
technical meaning if they have acquired one and otherwise in their ordinary
meaning; and secondly, that phrases and sentences are to be construed according to
the rules of grammar. That, if there is nothing to modify, alter or qualify the language
which the statue contains, it must be construed in the ordinary and natural meaning
of the words and sentences. It is further stated in the said text book that the safer and
more correct course of dealing with a question of construction is to take the words
themselves and arrive if possible at their meaning without, in the first instance,
reference to cases.
62. In further support of this point, Counsel relied on the statement in Pinner v Everrett
(1969) ALL ER 258-9, by Lord Reid that: In determining the meaning of any word or
phrase in a statue, the first question to ask is always “ what is the natural or ordinary
meaning of that word or phrase in its context in the statute”? It is only when that
meaning leads to some result which cannot be reasonably supposed to have been
the intention of the legislature that it is proper for some other possible meaning of
the word or phrase.
63. According to counsel for the Respondent, if the above rules are applied in the
construction of the phrase “ a further term of five years,” which uses the article “a”, it
implies that the words following the article “ a” being “ a further term of five years”
are meant to refer to only one further term of five years. Accordingly, the phrase “a
further term of five years” means that the elected members are eligible to hold office
for another term or a second term which will run for five years therefore making
their total tenure as two terms only.
64. Regarding the second leg of the submission by Mr. Ogalo, Counsel for the
Respondent’s response was that the context in which the words are used is indeed
paramount in the interpretation of such words. That the key object of Article 51(1)
is to provide for the period or tenure of office of an elected member of the EALA;
and secondly, it provides for whether such member can be eligible for re-election to
that office; and how many times. That for one to be eligible for another term of five
years, that person must have held office or been in office as a member of the EALA
for five years. Therefore, where one has been in office for two terms, hence ten years,
he or she falls outside the ambit of the Article 51(1) and is not eligible for re-election
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upon the expiry of ten years.

65. Counsel further submitted that holding office for five years and eligibility for re-
election for a further term of five years have to be read together and cannot be
separated because: the first part of the sentence is joined to the second part of the
sentence by the word “and”, which is classified as conjunctive in character and
connotes togetherness, according to GC Thornton Legislative Drafting, 3rd Edition,
P. 84. Therefore, where one has been in office for 10 years, the first part of Article
51(1) is no longer applicable; and where that one is not applicable, then the next part
automatically lapses , for the reason that the two are connected by the word “and”
and hence one sentence that can only be read as one to get the meaning.
66. Counsel for the Respondent further argued that the Treaty is supposed to 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 light of its object and purpose. Good faith
would dictate that “a further term” means another one term and to subject it to any
other kind of interpretation than its ordinary meaning would be a total deviation
from the intention of the framers of the Treaty.
67. Regarding the Commercial Banking Company of Sydney Incorporation Act , New
South Wales, Counsel for the Respondent contended that one is not eligible for
re-election after ten years in office, under Article 51(1) of the Treaty, unless it is
amended. Similarly, New South Wales amended the Act after realising the ten year
limitation. Had it not done so, the bank’s authority to issue, circulate and re-issue
bank notes would have expired.
Reply by Applicant’s Counsel:

Counsel for the Applicant made a brief reply in which he agreed that the words whose
meaning is sought is “a further term” but strongly reiterated his earlier position.
Resolution of Issue No. 1 by the Court:

68. This is the crux of the Reference. The issue revolves around the interpretation of
Article 51(1) of the Treaty. The Vienna Convention on the Law of treaties sets out
the international rules of interpretation of treaties. Apart from the Anyang’ Nyongo
reference(supra), this Court has applied the rules in other references such as, the East
African Law Society and four others vs The Attorney General of the Republic of Kenya
and three others, Reference No. 3 of 2007.
Article 31 that comprises the general rule of interpretation reads:
meaning to be given to the terms of the treaty in their context and in light of its
object and purpose.
2. The context for the purpose of interpretation of a treaty shall comprise, in
(a) any agreement relating to the treaty which was made between all the parties
in connection with the conclusion 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 other parties as an instrument
related to the Treaty.
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3. There shall be taken into account:
(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.
(c) Any relevant rules of international law applicable in the relations between
the parties.
(d) A special meaning shall be given to a term if it is established that the parties
so intended”.
69. Article 32 provides that where, in interpreting a treaty, the application of Article 31
leaves the meaning ambiguous or obscure or leads to a result which is manifestly
absurd or unreasonable, recourse may be had to supplementary means of
interpretation including the preparatory work of the treaty and the circumstances of
its conclusion.
70. This is what this Court stated in the latter reference:
“Taking into account the said general principles of interpretation enunciated in
Article 31 of the Vienna Convention, we think we have to interpret the terms of the
Treaty not only in accordance with their ordinary meaning but also in their context
and in light of their objective and purpose. Primarily we have to take the objective
of the Treaty as a whole, but without losing sight of the objective and particular
provision”.
In interpreting Article 50(1) of the Treaty, we have adopted the same approach.
71. In the first part of his submissions, Mr Ogalo contented that the specific words
requiring interpretation are “ a further term”.
72. We do not agree with him. What requires interpretation is contextual, that is, the
whole of Article 51(1) of the Treaty. It is in our view, a deliberate way of isolating
that phrase from the context of Article 51(1) and is perhaps calculated to confuse the
Court. It is therefore against the principle of interpretation of treaties that a treaty
shall be interpreted in good faith.
73. We also disagree with his argument that when the phrase “ and be eligible for re-
election” is put together with “ for a further term of five years”, it means eligibility
for a further term of five years.
74. That interpretation in our view, suggests that there was a previous term or terms. It
simply means that someone has already been serving and he can be re-elected . The
further term has a definite length or period, that is, five years. We are unable to see
the further terms after the five years.
75. In the context of Article 51(1), we think that it becomes even clearer. The Article
provides that an elected member shall hold office for five years and be eligible for
re-election for a further term of five years. This means that upon election to office, a
member serves five years and he or she is then eligible for re-election for a further
term of five years. It means that he or she can even serve only one term of five years
if he or she is not re-elected. The total period is ten years.
76. Regarding Mr Ogalo’s submission on non-consecutive terms, our view is that Article
51(1) of the Treaty does not address itself on no-consecutive terms. The question of
election of EALA members generally, is not before us in this Reference. The issue
343
before us is specific, it concerns the tenure of EALA members under Article 51(1) of
the Treaty and it starts from to the first term of five years followed by eligibility for
re-election to a further term of five years. Article 51(1) is clear, it says, the tenure is
not renewable perpetually.
77. We have also perused the articles and newspaper reports referred to us by Mr Ogalo.
We do not need to comment on them in detail. Suffice it to say that Counsel should
have warned himself of the dangers of relying on newspaper articles as authorities
because they are not. Further it is common knowledge that news reporters areprone
to using phrases and words without necessarily considering their legal definitions.
Most importantly, we find that they do not support the Applicant’s case because they
were used in the context of the respective circumstances of those reports.
78. The Jomo Kenyatta one is the best illustration on the point simply because at that
time, it well known that at the material time, Kenya had no term limits, so the
phrase could in the circumstances rightly mean an endless re-election. Moreover,
according to the article, Mzee Jomo Kenyatta ran alone in the said elections until he
was unable to do so due to age and poor health.
79. Regarding Mr Okundi’s tenure, there is a definite understanding of how long Engineer
Okundi could serve as Chairperson of the Kenya Communications Commission. He
had a three year tenure to which he could be appointed without any limitation.
80. Regarding Mr. Baradei, we see that it was his choice not to run for a further term but
there was no doubt what that fourth term meant.
81. For the Argentinean dictator, it was certain from his own submissions that the
dictator was given 25 years in jail, then a life sentence, and the further 15 year jail
term was for crimes against humanity, i.e. another jail term altogether. We did not
have the benefit of listening to Mr Ogalo orally, so his submission on this point left
us in confusion. We do not know where this submission supports his case, is it on
the length of the jail term or the meaning of the word “further” ?.
82. In the case of the Saudi Arabian woman who was convicted of driving, our view is
that the further ten days were in addition to the five days she had already spent in
jail. So, it was clear.
83. The rest of Mr. Ogalo’s examples are not any different from the above. We do not
need to comment on them any further in the judgment.
84. To drive home his argument that Art 51 (1) does not limit the number of terms
members of EALA can serve the Assembly, Mr Ogalo compared the construction of
Art 51 (1) with that of the other articles providing for tenure of office in other organs
of the community. He submitted that Articles 67 (4), 68(4), and 25(1) of the Treaty
(above cited) which provide respectively for the tenure of service of the Secretary
General, Deputy Secretaries General and Judges of this Court, are explicit in their
intention to limit the number of years of holding office in the Community, that there
is no vagueness, that they are in clear unambiguous language and that they leave no
room for whether or not a holder of office can remain in office after a particular time.
He substantiated his argument by pointing out phrases such as “a fixed five years
term, renewable once” and“ a maximum period of seven years” that the framers of
the Treaty employed to convey a clear intention to limit periods of service in the
Community.
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85. We shall not reproduce the Articles here, since we have done so earlier on in this
judgment. We have however carefully examined the said Articles including Article
51(1) and have come to a different conclusion, that is, that all the Articles are as
explicit as can be on the number of years for holding an office in the Community.
Article 25 (1) provides, with a “shall” that a judge of the Court shall hold office for
a maximum of seven years; Article 51 (1) provides, with a “shall” that an elected
member serves a term of five years and, after re-election, a further term of five years;
Article 67 (4) provides, with a “shall” that the Secretary General serves a fixed five
years term and 68 (4) provides, also with a “shall” that a Deputy Secretary General
serves a three years term renewable once.
86. We also see nothing to fault the language in Art 51 (1) for. This is because we do
not see anything even remotely vague or ambiguous in the Article. Apart from the
wilfully blind, no one else would fail to read and understand the tenure of office of
elected members as provided in the article. Nothing calls for interpretation, since in
our view, a plain reading of the Article is enough.
87. We find, instead, that the framers of the Treaty in Art 51 (1) went the proverbial
extra mile to prevent the kind of misinterpretation the applicants are deliberately
indulged in by inserting the words “five years” both for the first term and
“five years” to clarify the situation after re-election. We do believe that the framers
risked repetition and wrote
“five years” twice in one short sentence for avoidance of doubt as to what their
intention was. Even if they had stopped at
“a further term” a common sense contextual interpretation would have shown that
that further term was consistent and equal to the previous one.
88. We do not find any particular linguistic hurdles that the Applicant needed to cross
in order to understand what is clearly an ordinary and straightforward English
sentence.
89. Mr Ogalo argued that the object and purpose of Article 51(1) cannot be the object
and purpose of an Article providing for tenure and disqualification at the same time.
With due respect, we find that he is the only one reading disqualification in Article
51(1).It is not the Respondent’s interpretation. Similarly, for us, what we see in Article
51(1) is tenure of elected members. That is the heading of the Article and it goes on
to say that the members will be in office for five years upon election and for a further
term of five years upon re-election. Our ordinary and plain understanding of tenure
is a period of time when someone has a job or is holding office.( See: Longman’s
Dictionary of Contemporary English page 1710.)
90. Mr. Ogalo also says that the Article whose purpose is to provide for qualifications
and by implication, disqualification, is Article 50(2). We agree with him in the sense
that Article 50(2) sets down, from (a) up to (e), the qualifications of an electable
person. We also agree that someone who falls short of any of those qualifications is
not electable and is therefore disqualified. But with due respect and for the reasons
already stated in this judgment, we part company with him at the point where he
attempts to stretch the provisions of Article 50(2) to cover tenure as well.
91. With due respect to learned counsel for the Applicant, we are also not persuaded by
his argument that a “a further term” means “any” or “every term”.
345
The phrase under interpretation is “a further term of five years”. It would be absurd
to say that the phrase means “any term of five years” or “ every term of five years”,
as the applicant’s counsel would like us to believe.
By reason of the foregoing, we are unable to accept Mr. Ogalo’s novel argument.
We accordingly answer this issue in the affirmative.
Issue No. 2: Whether it was an infringement for the Honourable Attorney General to
interpret Article 50(1) of the Treaty.
Submissions by Counsel for the Applicant:

Learned counsel for the applicant submitted that the this issue should be answered
in the affirmative for the following reasons:
92. When the Speaker wrote to the Honourable Attorney General ( referred to herein as
the Respondent, for brevity), as head of one arm of government to another, she had
formed the view that the matter required an advisory opinion, so she specifically
stated that the Respondent should seek an advisory opinion on the interpretation
of Article 51(1) from the Respondent from this Court. She demanded so because
the Respondent has the mandate “ to represent the government in courts...” under
Article 119 (4) of the Constitution of Uganda.
93. Counsel stated that the Speaker did not seek legal advice from the Respondent or
his opinion . Her letter was written in very simple English. He submitted that where
an institution of government of a partner state wishes to have an advisory opinion
from the EACJ on a matter touching the interpretation of the Treaty, it is not open
to anyone or authority to decide whether the opinion of the Court should be sought
or not. The Attorney General is a mere conduit to facilitate the concerned institution
or body.
94. This is because, firstly, Article 36 generally gives a partner state authority to seek
an advisory opinion. Article 1 defines Partner State. The honourable Attorney
General is not a Partner State. The query has to emanate from a person, institution
or body implementing the provisions of the Treaty and not the Attorney General.
The Attorney General is not the one applying the Treaty and may not comprehend
the magnitude of the difficulties the Speaker is grappling with. In the present case,
the Speaker had to determine whether to exclude a candidate from the ballot paper.
If the Speaker makes a wrong decision, it may lead to litigation and annulment of the
whole election which would lead to suspension of EALA like in 2006. With respect,
the Honourable Attorney General did not seem to comprehend the effect of blocking
the Speaker. This Court ought, for that reason, to lay down a general rule as to how
advisory opinions from partner states ought to be processed.
95. Mr Ogalo submitted that the second reason is consistency. The question posed by the
Speaker arises from Article 50(1) of the Treaty which provides for tenure of office of
EALA members. As directed by Article 8 (2) of the Treaty, Uganda as a partner state,
enacted The EAC Act, 2002, to give effect to the Treaty. Section 3 thereof confers on
the Treaty the force of law in Uganda. It is very clear therefore, that the Treaty is part
of the laws of Uganda. It is a schedule to the EAC Act 2002. That makes it part of
the law of Uganda. The question of tenure of members of Parliament of Uganda is a
matter of law.
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96. That the Schedule which is the Treaty itself provides who has the jurisdiction to
interpret the Treaty and vests that power in the EACJ. In other words, an Act of
Parliament confers upon the EACJ jurisdiction to interpret the Treaty. That is the
law in Uganda. There is no law whatsoever which grants the Attorney General the
authority to interpret the Treaty.
97. He contended that the Attorney General seems to be acting under the mistaken
belief that the authority under Article 119 (4) of the Constitution to give legal advice
to the government of Uganda includes usurping the jurisdiction of this Court. These
are two different things.
98. Jurisdiction is conferred by law. It cannot be assumed. The assumption by the
Honourable Attorney General to interpreted the Treaty therefore infringed Articles
27(2) and 23 (1) of the Treaty because he purported to do what is vested elsewhere in
the Treaty.
Submission by the Respondent’s Counsel:

99. The response of the Respondent’s Counsel was, no, the Attorney General did not
infringe the Treaty by giving an opinion on the matter. Their contention is that the
Attorney General, being the principal legal advisor to government, after addressing
his mind to the principles of interpretation and bearing in mind the busy schedule
of this Court, thought it wise not to seek an advisory opinion on a matter that was
and is still self explanatory as discussed in issue number one. By so doing, he did not
usurp the power of the Court, but was fulfilling his constitutional mandate under
Article 119 of the Constitution.
100. They submitted that Article 33(2) of the Treaty envisages interpretation of the
Treaty provisions by national courts although this Court remains with the supremacy
in interpretation of the Treaty.
101. They further submitted that Article 31 of the Treaty does not mean that it
is a mandatory requirement for the courts or tribunals of a Partner State to seek
interpretation form this Court. They can do so if they consider that a ruling on a
certain question is necessary. That the same applies to advisory opinions. The
seeking of an advisory opinion by a Partner State is purely discretionary. A State can
only seek an advisory opinion from this Court if it deems it necessary. That in any
case, an advisory opinion is not binding on all Partner States, it can be challenged
through a reference, just like in the instant case, where one is not satisfied with the
interpretation.
102. Counsel for the Respondent contended further that to argue otherwise would
lead to a floodgate of applications seeking for advisory opinions from this Court,
hence paralyse the normal operations of the Court. It would therefore be a risky
precedent to hold that member states are under a mandatory duty to seek an advisory
opinion when a member a party state requests the Attorney General of that party
state to do so.
103. A party state should be left to exercise its discretion as to which matters are
referred to this Court for advisory opinion.
The contention by the applicant that the Attorney General is just a conduit is
therefore untenable and should be rejected by the Court.
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Resolution of Issue No. 2 by the Court:

104. It is not in dispute that Article 36 of the Treaty gives a Partner State authority
to seek an advisory opinion and that the Attorney General has the mandate to make
the request. We however disagree with Mr Ogalo that the Attorney General is a mere
conduit. The language of Article 36 is discretionary. It says:
The Summit, Council or Partner States may request the Court to give an advisory
opinion regarding a question of law arising from this Treaty which affects the
Community...”
105. The Article gives the Attorney General the discretion to make the request for
advisory opinion to this Court where he deems appropriate in his capacity as the
principal legal advisor to government. The Attorney General, must of course, exercise
that discretion judiciously, on the basis of the materials or information available to
him or her, otherwise his or her decision can be challenged in a court of law.
106. In the instant case, we observe that the materials availed to the Honourable
Attorney General of Uganda, namely, the Speaker’s letter, the Treaty, specifically
Article 36 thereof, clearly shows that the issue before him: is a question of law
which required resolution by the Court; It arose from the Treaty; and Affects the
Community.
107. Therefore, a judicious exercise of discretion by the Respondent should have
compelled him to request for an advisory opinion from this Court and saved the
Community the costs of this Reference.
108. Otherwise, we find that the Articles of the Treaty cited by Counsel for the
Respondent are not useful as they do not apply to the Respondent. Article 31 deals
with disputes between the Community and its employees, while Article 33 deals
with the interpretation of the Treaty by national Courts. Article 33(2) actually states
expressly that the interpretation by this Court takes precedence over that of national
courts.
109. We do not, however, find anywhere in his opinion that the Attorney General was
holding out as the Court. His document is, in our view, a legal opinion and cannot be
mistaken by any stretch of imagination as an advisory opinion from this court. The
criticism that he usurped the power of this court is thus unfair, in the circumstances.
110. For the reasons given, we find and hold that the Attorney General, in resorting
to interpret the Treaty instead of making a request for an advisory opinion, did not
infringe the Treaty as such, but failed to exercise his discretion judiciously.
111. We, however, strongly advise that before any Attorney General or official of any
Partner State of the Community makes such a decision or does such an act, he or she
should always warn himself or herself of the ramification of the real possibility of five
different interpretations of an Article of the Treaty (from the five Partner States).
We therefore find it imperative to remind the Partner States particularly Attorneys
General that the need for consistency in interpretation of Treaty provisions, should
make it imperative for them to refer questions of interpretation of the Treaty to
the East African Court of Justice (EACJ), the organ established, inter alia, for that
purpose.
In the result and for the reasons given, we answer issue No. 2 in negative.
348
Issue No. 3: Whether the Applicant is entitled to the reliefs sought.
Submission by Counsel for the Applicant:

Learned Counsel for the Applicant submitted that the applicant is entitled to the
reliefs sought on the basis of his submissions in the preceding issues. The Court
should order accordingly.
Submission by Counsel for the Respondent:

112. Learned Counsel for the Applicant is not entitled to the reliefs sought. That it
could have requested the Court for an advisory opinion without involving the
respondent. The reference was uncalled for, therefore, it should be dismissed with
costs to the respondent.
Resolution of issue No. 3 by Court:

113. We respectfully disagree with the Respondent’s Counsel’s submission that the
Applicant could have requested for an advisory opinion from the Court instead of
filing this Reference. This is because the Treaty does not allow individuals or other
legal entities like the Applicant to request for advisory opinion from this Court. It is
restricted to the Summit, the Council and Partner States under Article 36. Instead it
is the Respondent’s duty to do so.
114. As a result of our findings on the previous two issues, we find and hold that the
Applicant has not made out a case for the grant of the orders sought in the Reference.
We answer this issue in the negative.
The Reference is accordingly dismissed.
115. We however order each party to bear its costs, this being in our view a public
interest litigation. This is because it was not contested by the Respondent that the
objectives of the Applicant are, inter alia, the defence of the Rule of law, democracy,
good governance and human rights in the region. The Reference was thus for the
benefit of the Community.
116. We thank both parties for the zeal and industry they exhibited in this Reference.
****
Mbugua Mureithi wa Nyambura And The Attorney General of the Republic

of Uganda &The Attorney General of the Republic of Kenya And Avocats sans
Frontières - Amicus Curiae
Jean Bosco Butasi, PJ; John Mkwawa, J; Faustin Ntezilyayo J.

February 24, 2014
Limitation of time - Cause of action -Interpretative jurisdiction of the court on human

rights issues-Whether the arrest, interrogation, detention and deportation of the
Applicant infringed the EAC Treaty.
Articles: 6(d), 7(2), 27 ,(1) and 104(1) of the Treaty - Articles 2(4)(b), 4(5), 5(2)(b),
7(2), 10(3), 11(1) and 12(1) of the East African Common Market Protocol - Rules 1(2)
and 24 of the EACJ Rules of Procedure, 2010.
In July, 2010, six Kenyan citizens were arrested and detained incommunicado in
Kenya and then handed over to Ugandan Authorities for trial as terrorist bombings in
Kampala on 11th July 2010. Thereafter, the Muslim Human Rights Forum a Kenyan
Human Rights Non-Governmental Organization and their families instructed the
Applicant, a resident of Kenya, a Human Rights lawyer and defender, to pursue the
issue of a fair trial of the suspects in the Courts of Uganda.
On 15th September, 2010, the Applicant flew to Kampala, Uganda to attend to the
case scheduled on 16th September, 2010 at the Nakawa Chief Magistrate’s Court.
Upon arrival at the Entebbe Airport, the Applicant alleges that he was hurled into
a trap by members of the Uganda’s Rapid Response Unit (RRU). He was arrested
at gunpoint, manacled on the legs and driven around the outskirts of Kampala
throughout the night and threatened with being charged with terrorism and murder.
The Applicant was locked up incommunicado with his clients in the cells at RRU
Kireka from 16th to 17th September, 2010, and his belongings were seized.
On 18th September, 2010, the Applicant was escorted by Ugandan security officers to
an Aircraft of Uganda Airlines destined for Nairobi, Kenya. His passport and other
belongings were handed back to him in the aircraft. The agents of the 1st Respondent
did not give any reasons for his arrest and detention.
The Applicant filed this Reference contending that the Respondents actions of
violated the Treaty and he sought declaratory orders that inter alia: the deportation
and/or forcible removal of the Applicant from Uganda without due and legal process
was unlawful, unjustifiable and in violation of Articles 6(d), 7(2) and 104(1) of
the Treaty and Article 7 of the Protocol for the Establishment of the East African
Common Market.
350
Held:
1. The inclusion of allegations of human rights violation in a reference would never
distract the Court from exercising its interpretative jurisdiction. The Court had
jurisdiction to entertain the Reference.
2. The Applicant could not rely on the Rugumba case since he was released on 18th
September, 2010 and he took one year, three months and twelve days to file the
Reference instead of two months prescribed by the Treaty. The Reference was
therefore dismissed as time-barred.
Cases cited:
Attorney General of the Republic of Kenya v Independent Medical Legal Unit, EACJ
Appeal No.1 of 2011
James Katabazi & 27 Others v. EAC Secretary General and the Attorney General of the
Republic of Uganda, EACJ Reference No.1 of 2007;
Prof. Anyang Nyong’o v the Attorney General of the Republic of Kenya, EACJ Reference
No.1 of 2006.
Samuel Mukira Mohochi v Attorney General of the Republic of Uganda, EACJ Reference
No.5 of 2011
Judgment
Introduction
1. The Applicant is a citizen of the Republic of Kenya, an Advocate of the High Court of
Kenya and a Human Rights lawyer and defender. His address of service for purposes
of this Reference is care of Mureithi Olewe & Associates Advocates, 4Th floor, Josem
Trust House (housing Barclays Bank), Masaba Road, off Bunyali Road, Lowerhill,
P.O. BOX 52969,(00200), Nairobi, Kenya.
2. The 1st Respondent is the Attorney General of the Republic of Uganda, the Chief
Legal Advisor to the Government of Uganda and is sued on behalf of the Government
of Uganda. The 1st Respondent’s address of service for the purposes of the Reference
is care of the Ministry of Justice and Constitutional Affairs Headquarters, plot No.1,
Parliament Avenue, Queen`s Chambers, P.O. Box 7183 Kampala, Uganda.
3. The 2nd Respondent is the Attorney General of the Republic of Kenya and is sued on
behalf of the Government of Kenya. The 2nd Respondent’s address of service for the
purposes of this Reference is care of the Attorney General`s Chambers, State Law
Office, Sheria House, Harambee Avenue, P.O. Box 40112 – 00100, Nairobi, Kenya.
4. It is also worth noting that on 3rd May, 2013, Avocats Sans Frontières by its Notice
of motion sought orders for leave to intervene as Amicus Curiae in this Reference in
compliance with Article 40 of the Treaty for the Establishment of the East African
Community and Rule 36 of the Court’s Rules of Procedure, 2013 (herein referred to
as “the Treaty” and” the Rules” respectively). The Application was granted on 28th
August, 2013.
Mureithi wa Nyambura v AG Uganda and another
351
Representation
The Applicant was represented by Mr. Selemani Kinyunyu.
Mr. Denis Bireije, Mr. Phillip Mwaka, Mr. Richard Adrole and Mr. E. Bafirawala
appeared for the 1st Respondent.
Ms. Stella Munyi represented the 2nd Respondent while Mr. Nicholas Opiyo and
Mr. Antony Mulekyo appeared for Avocats Sans Frontières.
Background
5. The Applicant is a Human Rights lawyer and defender. Sometime in July, 2010, six
Kenyan citizens were arrested and detained incommunicado in Kenya before being
rendered from Kenya and handed over to Ugandan Authorities for trial as terrorist
bombings in Kampala on 11th July 2010.
6. Following their arrest, the Muslim Human Rights Forum (hereinafter referred to
as “MHRF”), a Kenyan Human Rights Non-Governmental Organization and their
families instructed the Applicant to pursue the issue of a fair trial and assist the
suspects in the Courts of Uganda.
7. On 15th September, 2010, the Applicant flew to Kampala, Uganda in order to attend
their case at the Nakawa Chief Magistrate’s Court scheduled on 16th September,
2010 and to petition for temporary admission to the Roll of Ugandan Advocates to
enable him to defend the suspects in Court.
8. Upon his arrival at the Entebbe Airport on the same date, the Applicant alleges that
he was hurled into a trap by members of the Uganda’s Rapid Response Unit (hereafter
referred to as “the RRU”) through an officer who kept calling one Al-Amin Kimathi.
The latter had travelled with the Applicant from Nairobi. That officer pretended to
be waiting for them at Niagara Hotel with a letter from one of the Applicant’s clients.
9. When they reached the Niagara Hotel, they were arrested at gunpoint, manacled
on the legs and subjected to endless high speed driving into the outskirts of
Kampala throughout the night, while being taunted as terrorists and threatened
with being charged with terrorism and murder offences. The Applicant was locked
up incommunicado with his clients in the cells at RRU Kireka from 16th to 17th
September, 2010, and his belongings were seized.
10. He was thereafter transferred to Entebbe International Airport Police Station where
he continued to be detained incommunicado without any contact from his family
until 18th September, 2010. On the morning of 18th September, 2010, the Applicant
was escorted by Ugandan security officers to an Aircraft of Uganda Airlines destined
for Nairobi, Kenya. His passport, mobile phone and other personal belongings
were handed back to him in that aircraft. No reasons were given to him about that
mistreatment.
11. This instant Reference challenges the aforesaid acts of ill-treatment to the Applicant
by the 1st and 2nd Respondents.

12. The Applicant’s case is contained in his Reference filed on 30th December, 2011 under
Articles 27, 30 and 38 of the Treaty and Rules 1(2) and 24, his affidavit sworn on 20th
March, 2013 and filed on 21st March, 2013 as well as in his written submissions.
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13. In summary, his case is as follows: The Applicant alleged that he was arrested upon his
arrival at Kampala on 15th September, 2010, where he was detained incommunicado
and interrogated by the agents of the 1st Respondent in complicity with the agents of
the 2nd Respondent from 15th to 18th September, 2010.
14. On 18th September, 2010, the Applicant was deported to Kenya without having been
given reasons for his arrest, detention, interrogation and deportation.
15. It is the Applicant’s contention that, the above acts of the Respondents were in
violation of Articles 6(d), 7(2) and 104(1) of the Treaty, Articles 2(4)(b), 4(5), 5(2)
(b), 7(2), 10(3), 11(1) and 12(1) of the East African Common Market Protocol and
Articles 2, 5, 6, 7, 8, 9, 10, 11 and 12 of the African Charter on Human and Peoples’
Rights and Principles 16, 17, 18 and 21 of the UN Basic Principles on the Role of
Lawyers.
16. On the basis of the foregoing, the Applicant sought the following orders:
i.) that the arrest of the Applicant by security agents of Uganda in complicity with the
Kenyan security agents without warrants and the search and confiscation of his
belongings without warrants were unlawful and unjustifiable and constituted a
violation of Articles 6(d) and 7(2) of the Treaty by the Respondents;
ii.) that the violent arrest of the Applicant without warrants at gunpoint, hooding
him, manacling him in the legs, subjecting him to endless high speeding into
outskirts of Kampala throughout the night while taunting him of being a
terrorist and threatening him with execution and depriving him of sleep and
rest by Ugandan security agents in complicity with Kenyan security agents were
unlawful and unjustifiable and contravened Articles 6(d) and 7(2) of the Treaty;
iii.) that the incommunicado and unlawful detention for four days and confiscation
of his belongings without warrants by Ugandan Security agents in complicity
with Kenyan security agents, infringed Articles 6(d) and 7(2) of the Treaty for
the Establishment of the East African Community;
iv.) that the interrogation of the Applicant jointly by the security agents of Uganda
and the security agents of Kenya relating to the Applicant’s instructions as an
Advocate of his clients was unlawful and unjustifiable and was in violation of
Uganda‘s and Kenya’s obligations under Articles 6(d) and 7(2) of the Treaty and
Principles 16, 17, 18 and 21 of the UN Basic Principles on the Role of Lawyers;
v. )that the deportation and/or forcible removal of the Applicant from Uganda
without due and legal process was unlawful, unjustifiable and in violation of
Articles 6(d), 7(2) and 104(1) of the Treaty and Article 7 of the Protocol for the
Establishment of the East African Common Market;
vi.) that the refusal to the Applicant by the Respondents to give any information or
reasons related to his mistreatment was unlawful and contravened Articles 6(d)
and 7(2) of the Treaty;
vii.) that the violent arrest of the Applicant without warrants followed by mistreatment
and his detention incommunicado by the Respondents were a violation of the
fundamental rights enshrined in Article 5 of the African Charter on Human and
Peoples’ Rights;
viii.) that the arrest, search, confiscation of the Applicant’s belongings without
warrants, his incommunicado detention without charge, interrogation related
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to his professional engagement and deportation from Uganda without formal

process were in contravention with Articles 2, 4, 5, 6, 7, 8, 10(1) and 12(1) and
(4) of the African Charter on Human and Peoples’ Rights;
ix.) that the denial of the Applicant jointly by Government of Uganda and
Government of Kenya of any information or reasons concerning his aforesaid
mistreatment constituted an infringement of the Applicant’s fundamental rights
of access to information guaranteed by Article 9(1) of the African Charter on
Human and Peoples’ Rights;
x.) that the Applicant is entitled to a remedy of reparation in general, exemplary and/
or punitive damages from the Respondents jointly and/or severally consequent
upon the violation of his fundamental rights and freedoms;
xi. that an order for such general, exemplary and/or punitive damages as this
Honourable Court may assess or as may be assessed by the competent National
Courts of the Respondents as may be directed by this Court;
xii.) costs of this Reference;
xiii.) that such other Orders, remedy or directions as the Court may deem fit to grant.
Case for the 1st Respondent

17. The 1st Respondent’s case rests on a response to the Reference filed on 14th March,
2012 which was supported by an Affidavit sworn by Okello Charles on 13th March,
2012 and filed on 14th March, 2012 and an additional Affidavit sworn by Aguna Joel
on 20th March, 2012 and filed on 22nd March, 2012 and he 1st Respondent’s Case is
contained in the written submissions dated 14th November, 2013.
18. In a nutshell, the 1st Respondent’s case can be summarized as follows:
i.) That the Applicant arrived in Uganda, through Entebbe International Airport, on
the night of 15th September, 2010;
ii.) that the Applicant was arrested on the same night of the 15th September, 2010 on
suspicion of being involved in terrorism, being a facilitator of terrorism by way
of being a conduit for funds directed towards terrorist operations and murder
over 70 Ugandans on 11th July, 2010, based on intelligence information obtained
by Uganda’s security forces;
iii.) That the Applicant was, at the time of his arrest, informed of the preferred charges
against him and was then driven to Kampala for interrogation;
iv.) That whilst in Kampala, the Applicant was detained on the 16th September, 2010,
interrogated and recorded a statement with the Uganda Police;
v.) that on 17th September, 2010 the Applicant was transferred to Entebbe
International Airport Police Station;
vi.) That the Applicant voluntarily returned to Kenya in the morning of 18th
September, 2010 and his passport was only stamped with an exit stamp;
vii.) That the 1st Respondent denies that the Applicant was deported and further
denies that its servants, agents marked or in any way mutilated the Applicant’s
passport;
viii.) that the 1st Respondent denies in toto the allegations of violation of the stipulated
Treaties and instruments and contends that its servants, agents executed their
duties professionally, in accordance with Uganda’s Laws and in compliance
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with the stipulated Treaties and instruments;
ix). that the 1st Respondent contends that the Applicant is not entitled to the
remedies sought.
Case for the 2nd Respondent

19. The 2nd Respondent’s case is contained in his response to the Reference filed on 27th
February, 2012. In a nutshell, the 2nd Respondent denies vehemently the allegations
of the Applicant. In summary, the 2nd Respondent’s case is expressed as follows:
i. ) that he was not aware of the arrest, interrogation, detention and the alleged
deportation of the Applicant;
ii.) That he denies any implication and responsibility for the sub judice matter;
iii.) that the 2nd Respondent contended that Uganda is a sovereign State and took
action with the Government of the Republic of Uganda since he was informed of
the Applicant’s case.
Avocats sans Frontières’ Position

20. The amicus curiae’s position is summarized in its written submissions. In brief, it is
explained as follows:
i.) that it is the obligation of each State to respect and protect the Principles of
lawyer’s independence in the East African Community;
ii. ) that the lawyers’ independence is a fundamental standard of human rights;
iii.) That the lawyers’ independence is most essential in protecting and upholding
the rule of law;
iv.) That the lawyers’ independence is universally accepted standard of human rights
recognized in the Treaty.
21. Pursuant to Rule 53 of the Rules of this Court, a Scheduling Conference was held on
29th January, 2013 where the Parties pointed out the points of agreement: That the
issues raised in this Reference are triable on the basis of Articles 6, 7, 27 and 30 of the
Treaty for the Establishment of the East African Community.
22. The following were stressed as points of disagreement and therefore issues for
determination by this Court:
a) Whether the East African Court of Justice has jurisdiction to entertain this
Reference;
b) Whether the Reference is time-barred;
c) whether the arrest, interrogation and detention of the Applicant was a violation
of Articles 6(d), 7(2) and 104(1) of the Treaty for the Establishment of the East
African Community, Articles 2(4)(b), 4(5), 5(2)(b), 7(2), 10(3), 11(1) and 12(1)
of the Protocol for the Establishment of the Common Market and Articles 2, 5,
6, 7, 8, 9, 10, 11 and 12 of the African (Banjul) Charter on Human and Peoples’
Rights and the United Nations Basic Principles on the Role of Lawyers have been
violated;
d) whether or not the Applicant was deported and if so, whether the deportation was
in violation of Articles 6(d), 7(2) and 104(1) of the Treaty for the Establishment
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of the East African Community, Articles 2(4)(b), 4(5), 5(2)(b), 7(2), 10(3), 11(1)
and 12(1) of the Protocol for the Establishment of the Common Market and
Articles 2, 5, 6, 7, 8, 9, 10, 11 and 12 of the African (Banjul) Charter on Human
and Peoples’ Rights and the United Nations Basic Principles on the role of
Lawyers have been violated;
e) Whether the Parties are entitled to the remedies sought.
Determination of the Issues

Applicable Rules and Principles of Interpretation
23. On many occasions, this Court has stated that the Treaty for the Establishment of
the East African Community is an International Treaty subject to International Law
of Treaties and in particular, Article 31(1) of the Vienna Convention on the Law of
Treaties which has set up the general Rule of Interpretation of Treaties as follows:
“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. In the determination of the issues framed in this Reference, we shall be guided by the
above Principles and by the relevant Articles of the Treaty related to the jurisdiction
of the Court.
Issue No.1: Whether the East African Court of Justice has Jurisdiction to entertain
this Reference
The Reference is premised on Articles 27 and 30(1) of the Treaty.
25. The Applicant is a citizen and resident of the Republic of Kenya, one of the Partner
States of the East African Community and in that capacity, Counsel for the Applicant
said that he has the right to bring a reference before this Court. It is the Applicant’s
submission that under Article 30(1) of the Treaty in determining “the legality” of any
matter in question, the Court is empowered to pronounce itself on the “lawfulness”
of the matter and on whether the actions complained of constitute an infringement
for the provisions of the Treaty.
26. Through his prayers, the Applicant contended that the actions complained of
breached Uganda’s and Kenya’s obligations under Articles 6(d), 7(2) and 104(1)
of the Treaty as well as Article 7 of the Protocol for the Establishment of the East
African Common Market.
27. The Applicant thus, sought the interpretation of the aforesaid Articles of the Treaty
and therefore relied on the cases of the Attorney General of the Republic of Kenya vs.
Independent Medical Legal Unit, EACJ Appeal No.1 of 2011; the Attorney General
of the United Republic of Tanzania vs. the African Network of Animal Welfare
(ANAW), EACJ Appeal no.3 of 2011; James Katabazi & 27 Others vs. EAC Secretary
General and the Attorney General of the Republic of Uganda, EACJ Reference No.1 of
2007; Samuel Mukira Mohochi vs. Attorney General of the Republic of Uganda, EACJ
Reference No.5 of 2011; the East African Law Society vs. the Secretary General of the
East African Community, EACJ Reference No.1 of 2011 and the Attorney General of
the Republic of Rwanda vs. Plaxeda Rugumba, EACJ Appeal No.1 of 2012.
On the basis of the above reasons, Counsel for the Applicant urged the Court to
answer Issue No.1 in the affirmative.
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28. Counsel for the 1st Respondent on their part stated that this Court does not have
jurisdiction to entertain this Reference. Counsel for the 1st Respondent argued that
the Court derives its jurisdiction from the Treaty and pointed out specifically Articles
23 and 27 of the Treaty. Article 23 of the Treaty provides that:
(1) “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;
(2) The Court shall consist of First Instance Division and an Appellate Division;
(3) The First Instance Division shall have jurisdiction to hear and determine, at first
instance, subject to a right of appeal to the Appellate Division under Article 35A,
any matter before the Court in accordance with this Treaty.”
Article 27(1) and (2) of the Treaty gives more clarifications as regards the jurisdiction
of the Court as follows:
(1)”The Court shall initially have jurisdiction over the interpretation and application
of this Treaty;
(2) The Court shall have such other original, appellate, human rights and other
jurisdiction as will be determined by the Counsel at a suitable subsequent date.
To this end, the Partner States shall conclude a Protocol to operationalize the
extended jurisdiction.”
29. Counsel for the 1st Respondent averred that the issues referred to this Court are
related to Human Rights Matters. Therefore, it follows that, until the Protocol to
operationalize the extended jurisdiction is concluded, this Court is not vested with
jurisdiction to handle the Reference.
30. Counsel for the 1st Respondent further asserted that even if he agrees with the
Applicant that the Court has jurisdiction to determine the matters set out in Article
30(1) of the Treaty, the Court is not empowered to entertain Human Rights matters
as raised by the Applicant.
Counsel for the 1st Respondent concluded his submissions by urging the Court to
dismiss the Reference on basis of that issue itself.
31. Counsel for the 2nd Respondent did not file written submissions. However, at the
hearing date of this Reference, she associated herself with the Counsel for the 1st
Respondent on Issue No.1.
32. Counsel for Avocats Sans Frontières did not address the Court on the issue of
jurisdiction. They considered that, being an issue argued between Parties, they
did not have to interfere. Rather, they addressed the Court on the issue of the
independence of the Advocates to practice in their respective Partner States.
Counsel for Avocats Sans Frontières contended that the Court, being the guardian of
the Treaty is bestowed with jurisdiction to interpret and apply it.
Findings of the Court on Issue No.1

33. We have read the Applicant’s submissions and counter submissions filed by
the Respondents. At this juncture, we have to recall that Article 27 of the Treaty
reproduced elsewhere above shows the jurisdiction of the Court. It is not in dispute
that this Court has jurisdiction over interpretation and application of the Treaty.
34. The contention by the Respondents that the Applicant is invoking the Human Rights
jurisdiction is a speculation that cannot stand. We agree with the Respondents that
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as long as the Protocol to operationalize the extended jurisdiction is not concluded,

this Court is not vested with jurisdiction to entertain Human Rights matters.
However, as to whether the functionality of Article 30(1) of the Treaty is subject
to the provisions of Article 27(2), we are unable to back that misinterpretation. A
reference under Article 30 of the Treaty is to be construed as an action to challenge
the legality under the Treaty of an activity of a Partner State and/or an institution of
the Community.
35. A clear reading of the points of disagreement arrived at during the Scheduling
Conference shows that the Applicant sought this Court to determine whether or
not his arrest, interrogation and detention was an infringement of Articles 6(d),
7(2) and 104(1) of the Treaty as well as Articles 2(4)(b), 4(5), 5(2)(b), 7(2), 10(3),
11(1) and 12(1) of the Protocol for the Establishment of the Common Market. The
wording of the issues (c) and (d) agreed upon at the Scheduling Conference and
the prayers sought relate to the interpretation which is the preserve domain of the
Court’s jurisdiction under Article 33(2) of the Treaty.
36. It is not in dispute that the Court has jurisdiction to interpret each Article of the
Treaty. The inclusion of allegations of human rights violation in a reference will
never distract this Court from exercising its interpretative jurisdiction. This has
consistently been the finding of the Court in Katabazi case (supra), Rugumba case
(supra), Omar Awadh case (supra) and Prof. Anyang Nyong’o vs. the Attorney General
of the Republic of Kenya, EACJ Reference No.1 of 2006.
37. Furthermore, this instant Reference is similar to Mohochi case (supra), in which the
Applicant challenged the violation of Articles 6(d), 7(2) and 104(1) of the Treaty
as well as the infringement of Article 7 of the Protocol for the Establishment of the
Common Market. This Court in the aforesaid case found and held that the cause of
action in the above case was based on the alleged infringement of a Partner State’s
Treaty obligations which lies outside the territory of Human Rights. The Court
held that the Reference fell under its jurisdiction. Moreover, during the Scheduling
Conference, both Parties agreed that there are triable issues based on the provisions
of Articles 6, 7, 27, and 30 of the Treaty. In view of the foregoing, we find and hold
that this Court has jurisdiction to entertain the Reference.
Issue No.2: Whether the Reference is Time-barred

38. On whether the Reference is time-barred, the Applicant submitted that: Firstly, both
the Respondents have not pleaded the limitation of time in their respective responses
to the Reference;
Secondly, having contested all allegations of fact and any breach or violation of the
Treaty, there is no longer a substratum on which the Respondents could base the
plea of time limitation, especially as a threshold issue. The Respondents are unable
to state the moment when the time started to run, hence, they cannot admit any
alleged violation;
Thirdly, the Respondents have the onus to show what among the reliefs sought by
the Applicant is time-barred;
Fourthly, before being furnished with full information related to the violations
complained of, the Applicant cannot be held to time limitation due to lack of full
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material to focus on his cause of action;
Finally, the Applicant relied on Rugumba case (supra) and contended that until he
had been furnished with all the information to the questions posed by the Appellate
Division of this Court as to “when, where, why and by whom he had been detained”,
he would not have filed any reference to this Court.
39. The 1st Respondent, on his part argued, that it is obvious that the Applicant was
arrested at Entebbe International Airport upon his arrival on 15th September, 2010,
by the Ugandan security officers and was, thereafter interrogated. He added that
on 17th September, 2010, the Applicant was transferred to Entebbe International
Airport from where he subsequently left Uganda on 18th September, 2010.
40. The 1st Respondent averred that it is not in dispute that the Applicant filed this
Reference on 30th December, 2011. The 1st Respondent asserted that the Applicant
came to know the alleged violation of his rights on 15th September, 2010, the date of
his arrest or on 18th September, 2010 when he left Uganda for Kenya.
41. He further submitted that the time frame provided for under Article 30(2) of the
Treaty to challenge any Act or action complained of is two months and that period
must be strictly interpreted. He cited the Omar Awadh case (supra) and East African
Law Society vs. the Attorney General of the Republic of Uganda,the Attorney General
of the Republic of Kenya and the Secretary General of the East African Community,
EACJ Reference No.3 of 2011 in support of his submissions.
42. The 1st Respondent averred that on the contrary, the arguments of the Applicant
that he had never raised the issue of time limitation in his pleadings are untenable.
He stated that he pleaded that the Reference was barred in law under paragraph 5 of
his response to the Reference and even at the Scheduling Conference, both Parties
framed an issue relating to time limitation. He asserted in addition, that even if he
would have forgotten to raise that issue before, the Court could not close its eyes to
such illegality.
43. He contended that it is the Court’s duty to interpret and apply the provisions of the
Treaty and to inform itself of the relevance of provisions that may affect its decisions.
44. In conclusion, he submitted that, the Reference was filed out of time and prayed that
this Court be pleased to dismiss it with costs.
45. As said previously, Ms. Munyi, Counsel for the 2nd Respondent did not file written
submissions. Nevertheless, during the last hearing of the Reference on 18th
November, 2013, she associated herself with the submissions of the 1st Respondent
on the issue of time limitation. She further referred the Court to the list of Authorities,
in particular the decision of the Appellate Division in Omar Awadh case (supra)
where the Court held that the Treaty does not contain any provision which allows
any disregard about the time limit of two months prescribed in Article 30(2).
46. Counsel for the 2nd Respondent, therefore, urged the Court to hold the same by
dismissing the Reference with costs to the 2nd Respondent.
Findings of the Court on Issue No.2

50 For ease of Reference, we shall reproduce the content of Article 30(1) and (2) and
analyze especially sub Article 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
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Court, the legality of any Act, directive, decision or action of a Partner State or an
institution of the Community on the grounds that such Act, regulation, directive,
decision or action is unlawful or is an infringement of the provisions of this Treaty;
2. The proceedings provided for in this Article shall be instituted within two months
the case may be.”
51. The general Rule of interpretation set out by the Vienna Convention on the Law
of Treaties reproduced elsewhere above is applicable to the interpretation of this
Article. It is our understanding from the plain reading of Article 30(2) that a
reference challenging any unlawfulness or infringement provided for under Article
30(1) must be instituted within a period of two months of their occurrence or in the
absence thereof, when the complainant came to know the Act or action complained
of. That is the clear and ordinary meaning to be given to the Article 30(2).
52. It is undeniable that the Applicant was arrested upon his arrival at Entebbe
International Airport on 15th September, 2010 by the Ugandan Rapid Response Unit
(RRU) and was escorted by Ugandan security officers into an Aircraft of Uganda
Airlines destined for Nairobi, Kenya on 18th September, 2010. It is also common
ground that this Reference was filed before this Court on 30th December, 2011.
53. The Applicant took exactly one year, three months and twelve days to file the
Reference instead of two months prescribed by the Treaty. Is there any hardship that
can explain such unusual non-compliance with the Article 30(2) of the Treaty? To
that question, the Applicant contended that he wanted to be told before he initiated
any reference when, where, why, and by whom he had been detained.
54. At this juncture, we hasten to say that this reasoning is not helpful at all. Why do we
say so? It is well set out in the Reference brought by the Applicant that he was arrested
and detained on 15th September, 2010,(when), upon his arrival at Kampala, (where).
The Applicant further pointed out that he was threatened with being charged with
the same terrorism and murder offences that his clients were facing if he did not give
false statement about the incrimination against the suspects, (why). It is also evident
from the complaint that he was arrested, interrogated and detained by the Uganda’s
Rapid Response Unit, (who).
55. It is our considered view that the Applicant can no longer rely on Rugumba
case(supra,) since he was released on 18th September, 2010. The Court was not told
what prevented the Applicant to file his Reference between 18th September, 2010
and 18th December, 2010 that to say, two months as prescribed by the Treaty.
56. We further find and hold that the Applicant cannot argue that he was not furnished
with full material to crystallize his cause of action. Indeed, it has been established by
this Court that an alleged infringement of the provisions of the Treaty would give
rise through interpretation of the Treaty under Article 27(1) to a cause of action [See
Mohochi case (supra) and Independent Medical Legal Unit case(supra)].
57. A cause of action is defined by the Black’s Law Dictionary as “A group of operative
facts giving rise to one or more bases for suing; a factual situation that entitles one
person to obtain a remedy in Court from another person.”
58. The Applicant has complained of the violation or infringement of the aforesaid
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Articles of the Treaty by the 1st and 2nd Respondents. It is that infringement which
constitutes a cause of action. Therefore, since he was enjoying his rights which were
allegedly violated by the Respondents, the requirements to support or sustain a cause
of action were enough to enable him to file a reference.
59. Coming back to time limitation as enshrined in Article 30(2) of the Treaty, we need
to say that the word “Limitation” is defined by the Black’s Law Dictionary as “a
statutory period after which a law suit or prosecution cannot be brought in Court.”
60. The Dictionary of Words and Phrases Legally Defined further clarifies that “For most
actions, periods of limitation are prescribed by statute with the consequence that an
action begun after the period of limitation has expired is not maintained.”
61. In addition, “A limitation period is a time limit, during which an action may be
brought, thereafter a potential plaintiff is barred and may no longer bring his action.
Statutes of limitation are in their nature strict and inflexible enactment” (See Law
Africa, Civil Procedure & Practice in Uganda, M. Ssekaana & S. N. Ssekaana).
62. Recently, the Appellate Division of this Court found and held that:
“It is clear that the Treaty limits Reference over such matters like these to two months
after the action or decision was first taken or made, or when the Claimant first
became aware of it. In our view, the Treaty does not grant this Court any express or
implied jurisdiction to extend the time set in the Article above. Equally so, the Court
below could not rule otherwise on the face of the explicit limitation in Article 9(4) to
the effect that the Court must act within the limits of its powers”- [See Independent
Medical Legal Unit case(supra)].
63. Moreover, the Court above found and held 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”- [See Omar Owadh case
(supra)].
64. Consequently, the Court is bound by the Law (Treaty) and for the above reasons
we have to take cognizance of the fact of the limitation. Therefore, we hold that
the Reference is time-barred. Moreover, as we have answered issue No.2 in the
affirmative, we refrain from entertaining issues nos. 3 and 4 for the simple reason
that the Reference is no longer alive.
Accordingly, this Reference is hereby dismissed.

As to costs, due to peculiar circumstances of this case, we deem it just for each Party to
bear its own costs.
It is so ordered.
****
Omar Awadh Omar, Hussein Hassan Agade, Mohammed Adan Abdow, Idris
Magondu,Mohammed Hamid Sulaiman, Yahya Suleiman Mbuthia, Habib &
Suleiman Njoroge
And
The Attorney General, Republic of Kenya, The Attorney General, Republic of

Uganda & The Secretary General, East African Community
Johnston Busingye, P.J, John Mkwawa, J, Jean Bosco Butasi, J

December 1, 2011
Continuous chain of actions - Continuing Treaty infringements – No mathematical

computation of time - Unlawful detention continues until it is stopped- Whether the
Reference was time-barred.
Article 30 (2) of the EAC Treaty - Rules 1(2), 4, 21 and 118 of the EACJ Rules of
Prrocedure, 2010.
Through Reference No 4 of 2011, the Applicants claim that they were abducted from
the Republic of Kenya, taken to the Republic of Uganda, detained and arraigned
on charges of terrorism allegedly committed in Uganda. They maintain that their
arrest, transfer to and detention in Uganda infringed the Treaty. The first and
second Respondents violated the Treaty by continuing to detain the Applicants.
The Applicants sought interim orders restraining the Second Respondent and
all institutions and authorities from proceeding with prosecution and trial of the
Applicants pending the hearing and the determination of the Reference.
Before the Application was heard, the 2nd Respondent raised a preliminary objection
claiming the actions complained of started in July 2010 and the Reference was
therefore time-barred and the Court had no jurisdiction to extend the time.
Held:
1) The object and purpose of Article 30(2) could not have been to deny the people in
East Africa the right to challenge continuing Treaty infringements of which they are
victims just because it was over two months since such infringements started.
2) The violations complained of constituted a continuous chain of acts the occurrence
of which the Applicants could not and cannot, until now, append a specific hour, day
and month.
3) While an unlawful arrest can be time specific an unlawful detention continues to be
an unlawful act on each succeeding day until it is stopped. The facts of the instant
Reference indicate unlawful acts, or treaty infringements which, if proved would be
continuous and incapable of mathematical computation of time. The preliminary
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objection was therefore disallowed.
Case cited:
Independent Medical Legal Unit vs The Attorney General of Kenya and 4 Others, EACJ
Ref. No.3of 2010
Editorial Note: In Appeal No 2 of 2012 it was held that;the limitation period started to
run from the date the arrest and detention were effected; and that continuing violations
were not exempted from the two-month limitation period. The action was therefore
time-barred.
Ruling
Introduction
1. The Applicants filed an Application before this Court by Notice of Motion under
Rules 1(2), 4, 21 and 118 of the EACJ Rules and Article 30 (2) of the Treaty for the
Establishment of the East African Community, (“the Treaty”). The Applicants are
seeking for orders and interim orders that:
2. This motion and any other pleadings/Applications by the Applicants touching on
and/or arising from Reference No.4 of 2011 before this Court or connected therewith
be lodged without payment of fees and fee in connection with the said Reference be
waived and/or refunded as the case may be.
3. Due to the nature and urgency of the Application, and to avoid irreparable injustice
this Honourable Court be pleased to prohibit, restrain and injunct the Government
of Uganda (the Second Respondent herein) and all institutions and/or persons and/
or authorities hereunder, as the case may be, from proceeding with prosecution and/
or trial of the Applicants pending the hearing and the determination of Reference
No. 4 of 2011 before this Honourable Court.
4. The time lag for institution of this Reference as prescribed by Article 30 (2) of the
Treaty be condoned by extension of time and the Reference be deemed to be within
time.
5. The Costs incidental to this Application abide to result of Reference No.4 of 2011
lodged with this Honourable Court.
6. The Application is supported by the affidavits of Rabia Mohamed Omar, the wife
of the 1st Applicant herein. In opposition to the Application is the response of Ms.
Patricia Mutesi, Counsel for the 2nd Respondent.
Background
7. According to the affidavit evidence and written submissions on the record it is
discernible that the Applicants were arrested from the Republic of Kenya, taken to
and detained in the Republic of Uganda where they have been arraigned on charges
of terrorism allegedly committed in Uganda.
8. They maintain that their arrest, transfer to and detention in Uganda infringes the
Treaty. It is against this background that they are before this Court seeking urgent
intervention.
Omar Awadh and others v AG Kenya and others
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9. At the hearing Counsel for the Applicants dropped prayers (c) and (d), and
maintained prayers (a) and (b) related to fees and injunction respectively.
10. Before the hearing of the Application could proceed Ms Patricia Mutesi, Counsel for
the 2nd Respondent raised a preliminary objection, on limitation of time. The Court
then allowed all parties to file their respective submissions on the objection.
This Ruling is in respect of that preliminary objection.
Submissions:
2nd Respondent’s Submissions
11. Ms Patricia Mutesi, Counsel for the 2nd Respondent relied on the affidavits of Ms
Robina Rwakoojo, the Acting Director of Civil Litigation in the Attorney General’s
Chambers, Kampala, Ms Joan Kagezi, Senior Principal State Attorney in the
Directorate of Public Prosecutions, Kampala and that of Wilson Magomu, Seniors
Superintendent in the Uganda Prisons Service, and told the Court that the acts
complained of in the Reference happened between 22ndJuly and 17th September
2010. She pointed out evidence on the record that shows that the Applicants were at
all times from the 22nd July 2010 aware of the acts they are now complaining of. She
then showed the Court evidence that the Reference was filed on the 9th June 2011.
She contended that the Reference on which this Application is based is itself out of
time, that the Court has no jurisdiction to extend the time and therefore the Court
cannot proceed to grant interim or any orders on such an Application.
12. Citing Article 30 (1) and (2) of the Treaty Counsel for the 2nd Respondent submitted
that the Reference should have been filed within two months from the date the acts
complained of happened or from the date the Applicants became aware of them.
The present Reference, she argued, meets neither of those Treaty requirements. She
contended that the present Application which arises from the Reference is time
barred.
13. She argued that Article 30 (2) of the Treaty reflects the principle that a cause of
action arises when a state of facts occurs which gives a potential claimant a right
to succeed against a potential defendant. She further argued that the Article also
recognizes that where applicable, time to file a Reference does not begin to run until
a claimant becomes aware of the alleged unlawful act or infringement complained of.
However, after a person becomes aware of the said action, the stipulated time of two
months begins to run and the time limit is thus imposed. She further contended that
Article 30 (2) of the EAC Treaty does not legally recognize any “continuing” breach
of violation of the Treaty outside the two months after a relevant action comes to the
knowledge of the Claimant.
14. Counsel contended that although the Applicants had sought to rely on Rules 1(2)
and 4 of the East African Court of Justice Rules of Procedure, (“the Rules”), those
Rules do not grant the Court any jurisdiction outside the Treaty but are themselves
subject to the provisions of the Treaty. In support of her stance she cited Article 9 of
the Treaty which provides, inter alia, that Organs of the Community shall perform
their functions within the limits of the powers conferred by/or under the Treaty.
364
1st Respondent’s Submissions
15. Mr. Edwin Okello, Counsel for the 1st Respondent, associated himself with the 2nd
Respondent’s submissions and added that the proceedings provided for in the Article
30 (2) must be instituted within two months of enactment, publication, directive,
decision or action complained of.
16. He further added that there is no provision within the Treaty that provides for
extension of time. He further contended that the cause of action arose between 22nd
July, 2010 and 17th September, 2010 and that; therefore, the Reference should have
been filed by 17th November, 2010 at the latest.
3rd Respondent’s Submissions

17. Mr. Agaba Stephen, Counsel for the 3rd Respondent, also associated himself with
the 1st and 2nd Respondents’ submissions. Citing Article 31 (1) of the Vienna
Convention of the Law of Treaties he submitted that if the Court interprets Article
30 (2) of the Treaty strictly and gives it its ordinary meaning, the present Reference
will be found to have been filed after the two month period provided under the above
provision.
18. Counsel distinguished the case of Independent Medical Legal Unit Vs the Attorney
General of Kenya and 4 Others Ref. No.3. of 2010 where this Court held that “failures in
a whole continuous chain of events cannot be limited by mathematical computation
of time”from the present case. Firstly, he submitted that the Applicants did not show
that they were abducted from Kenya and surrendered to Uganda illegally and that,
therefore, the action complained of cannot be said to be still ongoing, when it did
not even happen. Secondly, he argued, that the Applicants had not shown that the
Republic of Uganda had failed to provide any remedy before coming to this Court.
Applicants’ Response
19. Mr. Muturi Kigano, Counsel for the Applicants, in reply, submitted that it was
not contested that the Applicants and Counsel were aware of the infringements
complained of from July 2010. However, his contention is that the Republic of Kenya
and the Republic of Uganda continue to violate the Treaty by continuing to detain
or falsely imprison his clients to-date. Citing this Court’s holding in Independent
Medical Legal Unit vs The Attorney General of Kenya and 4 Others, Ref No 3 of 2010,
he submitted that the Treaty violations complained of were a chain of continuous
acts and that, in a situation such as the Applicants are in, time cannot begin to run
until the violations end.
Determination of the Application

20. We have carefully considered the evidence, the submissions as well as the applicable
law on the subject. The following are our findings and conclusions:
Article 30 (2) of the Treaty provides that:
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”.
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21. This Court is alive to the strict limitations imposed by this provision. We also agree
with the Respondents that proceedings can only be brought within two months
of the unlawful act or infringement complained of, or of the day the complainant
became aware of it.
22. The facts of the instant Reference, however, present us with the kind of unlawful acts,
or treaty infringements which, if proved would, in our view, obviously be continuous
and not capable of mathematical computation of time.
23. This can be discerned from Paragraphs 5 and 6 of the Reference which state that:
“5.On diverse dates between 22nd July 2010 and 17 September 2010 the Applicants
were captured and abducted from various locations in the Republic of Kenya by
officers from the Kenyan and Ugandan Police respectively in collaboration with
officers/officials acting on behalf of the United States of America, Federal Bureau of
Investigation (FBI) and were, after being illegally detained in various police stations
in Kenya (without charge) for periods between 3 and 6 days, spirited across the
border to Uganda in what is notoriously referred to as “rendition”.
“6. Upon rendition as aforesaid todate the Applicants have been shuffled between
various locations, forests, police stations, military barracks/camps and prisons under
the directions of the 2nd Respondent. All the applicants are currently being detained
at Luzira Prison, Kampala, Uganda.”
24. It can be further discerned from paragraphs 6 and 7 of the supporting affidavit of
Rabia Mohamed Omar which, at paragraph 6 says, in part, that several Kenyan
Muslims, inclusive of her husband, have been captured by and/or abducted by the
Kenya Police and/or officers acting thereunder in cahoots and/or collaboration
with officials from the Republic of Uganda and the United States Government and
transported/ transferred and surrendered to Uganda. None of the victims have been
subjected, before rendition to Uganda, to due legal process and/or recourse to due
extradition process; and at paragraph 7 it states that:
“My said husband is in custody of the notorious Rapid Response Unit (para military)
at Kireka, Kampala following violent capture, abduction and surrender as aforesaid.
He has not been tried or convicted. He was abducted on the 17th September 2010 on
Kimathi Street…………”
25. From the above cited parts of the Reference and affidavit evidence, it is clear
that the acts complained of as unlawful include unlawful detention, detention
incommunicado, denial of bail, vicious torture, continuous interrogation.
“Black’s Law Dictionary, 9th Edition, at p.514,defines“Detention”as “The act or fact
of holding a person in custody; confinement or compulsory delay.”
The Online Encyclopedia, Wikipedia, defines “Detention” as“any form of
imprisonment where a person’s freedom of liberty is removed…..”.
Loukės G. Loukaidės, in “The European Convention on Human Rights: Collected
Essays”, at p.26, states, inter alia, that “…detention appears to be a typical case of a
continuing violation initiated by an instantaneous act…”
26. The common thread running through the above literature, with which we are
respectfully in agreement, shows that detention is not a single happening;rather it
is a situation in which one’s right of liberty stands removed. It is a constant state of
affairs, that is to say, a continuing deprivation of a person’s liberty.
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27. We were invited by Counsel for the 3rd Respondent to interpret Article 30 (2) of the
Treaty in accordance with the provisions of Article 31 (1) of the Vienna Convention
on the Law of Treaties. The Article provides that:
“..a Treaty shall be interpreted in good faith in accordance with the ordinary meaning
given to the terms of the Treaty in their context and in the light of its object and
purpose.”
28. We have given careful thought and consideration to the import of Article 30 (2) of
the Treaty. We are of the decided view that its object and purpose could not have
been to deny the people in East Africa the right to challenge continuing Treaty
infringements of which they are victims just because it is over two months since such
infringements started.
29. In Independent Medical Legal Unit vs The Attorney General of Kenya and 4 Others
(supra) this Court held, in sum, that where matters complained of are failures in a
whole continuous chain of events from when the alleged violations started until a
claimant decides that a Respondent has failed to provide any remedy for the alleged
violations, then such action or omission of a Partner State cannot be limited by
mathematical computation of time. Counsel for the3rd Respondent attempted to
distinguish this case from the present Application. We are respectfully unable to find
the distinction he laboured to establish. The issues whether or not the Applicants
were abducted and surrendered to Uganda illegally and whether or not the Republic
of Uganda failed to provide a remedy are matters for the merits of the case.
30. In our considered view, the violations complained of do not constitute an act, rather,
it is our finding that they constitute a continuous chain of acts the occurrence of
which the Applicants could not and cannot, until now, append a specific hour, day
and month. For instance, while an unlawful arrest can be time specific an unlawful
detention continues to be an unlawful act on each succeeding day until it is stopped.
Conclusion
31. In view of the foregoing, we have no hesitation in concluding that the alleged Treaty
violations complained of in the present Reference are continuous to-date and cannot
be subjected to mathematical computation of time.
32. Accordingly, we find and hold that Reference No 4 of 2011 is properly before this
Court. Consequently, the present objection is hereby disallowed.
Costs shall be in the cause.
It is so ordered.
****
Arising from Reference No. 4 of 2011
Omar Awadh Omar, Hussein Hassan Agade, Mohammed Adan Abdow, Idris
Magondu, Mohammed Hamid Sulaiman, Yahya Suleiman Mbuthia, Habib &
Suleiman Njoroge
And
The Attorney General, Republic of Kenya, The Attorney General, Republic of

Uganda & The Secretary General, East African Community
Johnston Busingye PJ, John Mkwawa J, Jean Bosco Butasi, J

February 28, 2012
Discretion to hear oral application - Stay of proceedings pending appeal-Whether the

Court had discretion to hear an oral application and to grant the stay.
Rule 21(7) (a) of the East African Court of Justice Rules of Procedure, 2010
The Second Respondent made an oral application for stay of further proceedings
pending an intended appeal against the ruling of the same court dated 1st December,
2011. A Notice of Appeal had been filed on 1st day of December, 2011 and the Appeal
would be rendered nugatory if the stay was not granted.
The Applicants claimed that no notice had been given on intended application for
a stay and that the stay would be prejudicial to the Applicant as it would result in
criminal proceedings against his client’s in the Ugandan Criminal Courts and defeat
the very purpose of the Reference.
Held:
The Court had discretion to hear an oral application and to stay the proceedings for
sufficient cause. The Court need not go into the merits of the pending appeal as that is
the sole domain of the Appellate Division.
Ruling
1. When the matter came up for hearing this morning namely the 28th day of February,
2012, Counsel for the Second Respondent, Ms. Patricia Mutesi, made an oral
application for stay of further proceedings pending an intended appeal against the
ruling of this court dated 1st December, 2011.
2. The ground for the intended Appeal as contained in a Notice of Appeal filed in this
Court on the 1st day of December, 2011, namely, on the very day that this Court gave
368
its decision, is against the whole decision of this Court as decided that Reference No.
4 of 2011 is not time-barred.
3. The learned Counsel informed the Court that the Notice in question was served
upon all the parties a long period before today. She argued with great force and
pertinacity that if today’s hearing proceeds as scheduled the intended Appeal would
in essence be rendered nugatory. She further argued that what is now before this
Court is provided by the Rules of this Court, namely, Rule 21(7) (a) of the Rules.
4. Learned Counsel for the Applicant, namely, Mr. Amuga strenuously opposed the
application. In support of his stance, he essentially contended that:
(a) The intended Appeal has no chance of success.
(b) The 1st Respondent’s counsel was aware of today’s hearing but took no steps to
let the Claimant’s/Applicant’s Counsel know of the intended prayer for stay of
proceedings in order to avoid the inconvenience so caused as a result thereof.
(c) The stay would be prejudicial to the Applicant as it would result in criminal
proceedings against his client’s in the Ugandan Criminal Courts hence defeat
the very purpose of the Reference now before the Court.
5. He further submitted that if the prayers are granted then this Court should issue the
interim orders sought in the Reference, namely that, proceedings before the National
Court in Uganda should be stayed pending the hearing of the instant application
now before this Court.
6. In rejoinder it was counter-submitted by Counsel for the Respondent that whether
the Appeal has a chance of success is a matter to be determined by the Appellate
Division and not this Court whose decision is subject matter before the Appellate
Division. In other words, she submitted that the submissions made by the learned
Counsel for the Applicant were speculative.
7. As regards the other limbs pursued in the Reference she submitted that, that cannot
be talked at this juncture as the intended Appeal is in respect of the very basis of the
claim in the Reference in question. In sum, she urged the Court to allow her prayer
for stay.
8. Mr. Agaba Steven Counsel for the 3rd Respondent associated himself entirely with
the stance of the Counsel for the 1st Respondent; and associated himself with the
arguments advanced thereof.
9. We have given due consideration to the rival submissions and we have the following
to say: This Court has discretion to hear an oral application as provided under the
Rules of the Court and proceed to stay the proceedings for sufficient cause.
10. We do, however, agree with the Counsel for the Applicant/Claimant that the Counsel
for the Respondent should have in one way or another indicated that she was going
to ask for stay of proceedings as filing an intended Appeal by itself is not sufficient.
11. We are of the candid view that in order for the Applicant to succeed in an application
for stay of proceedings in a pending appeal it is not required by this Court to go into
the merits of the pending appeal as that is the sole domain of the Appellate Division.
12. We are further of the view that the prayers made by the Counsel of the Applicant/
Claimant which appear as a “trade off” cannot be granted by this Court as the prayer
sought by the Counsel is not within our domain at this stage.
13. Accordingly, we grant the application and do hereby stay any further proceedings
369
before us until the determination of the intended appeal.

14. We do however strongly feel that the Claimant/Applicant is entitled to to-day’s costs
in any event.
It is so ordered.
****
Arising from Reference No. 6 of 2011
The Democratic Party & Mukasa Fred Mbidde And The Secretary General of the
East African Community & The Attorney General of Uganda
Johnston Busingye, P.J; Mary Stella Arach-Amoko, DPJ; John Mkwawa, J

November 30, 2011
Criterion for granting an interim injunction-East African Legislative Assembly

elections-Judicial discretion - Whether interim orders should be granted
Articles: 39 and 50 of the EAC Treaty - Rules- 1(2), 17, 21, 24 and 73 of The East
African Court of Justice, Rules of Procedure, 2010-Rules 11(1) and Appendix B r 3, 10
and 11 of the Rules of Procedure of the Parliament of Uganda, 2006
The applicant averred that the Government of Uganda and its Parliament had failed
to amended the Rules of Procedures of Parliament, 2006 (the “Rules”), in order to
conform to the provisions of Article 50 of the Treaty which provides for election
of members of the East African Legislative Assembly (EALA). The Applicants’
feared that, unless the Parliament of Uganda was going to use the said Rules in the
forthcoming election of Uganda’s representatives the EALA to their detriment.
Pending determination of Reference No 6of 2011 filed in this Court, they sought
an interim order, restraining EALA, the Attorney General and the Parliament of
the Republic of Uganda, from inter alia conducting any elections, recognizing any
names of nominees as duly nominated and elected to EALA, administering the
Oath of office and ultimately sending the representatives of Uganda to the EALA
until Rules 11(1) and Appendix B r 3, 10 and 11 of the Rules of Procedures of the
Parliament of Uganda, 2006 were amended to conform to the provisions of Article
50 of the Treaty.
Held:
The criterion for the granting of an interim injunction had been satisfied therefore, the
Attorney General and the Parliament of the Republic of Uganda were restrained from
conducting elections of Representatives of the Republic of Uganda to the EALA until the
determination of the Reference No. 6 of 2011.
Cases cited:
American Cynamid v Ethicon[1975] All ER 504
E.A.Industries v Trufoods (1972) E.A. 420
Giella v Cassman Brown Co. Ltd (1973) E.A 358
Jacob Oulanya v the AttorneyGeneral of Uganda, Constitutional Court of Uganda,
Constitutional Petition No.28 of 2006

Mary Ariviza & Another vThe Attorney General of The Republic of Kenya & Another,
EACJ Application No. 3 of 2010
Professor Anyang’ Nyongo and Ten Others v The Attorney General of The Republic of
Kenya and Five Others, EAC Reference No.1 of 2006
Sargeant v. Patel (1972) 16 EACA 63
Ruling
Introduction
1. We have before us an application made by the above applicants under Article 39
of the Treaty For The Establishment Of The East African Community Treaty (
hereinafter referred to as the “Treaty” and Rules 1(2), 17, 21, 24 and 73 of the Rules
of The East African Court Of Justice , 2008, whereby they are praying for orders
that:
2. (a) Pending determination of their Reference filed in this Court, an interim order be
issued against the Respondents restraining the East African Legislative Assembly, the
Attorney General and the Parliament of the Republic of Uganda, from conducting
and carrying out any elections, assembling, convening, recognizing any names of
nominees as duly nominated and elected to the East African Legislative Assembly
“EALA”,administering the Oath of office and ultimately sending the representatives
of Uganda to the EALA until Rules 11(1) and Appendix B r 3, 10 and 11 of the Rules
of Procedures of the Parliament of Uganda, 2006 are amended to conform to the
provisions of Article 50 of the Treaty.
(b) They be granted such other orders and directions as may be appropriate in the
circumstances.
(c) The costs of the application be provided for.
3. The application is supported by the affidavit of the Second Applicant. In opposition
to the application, there are replying affidavits sworn by the Attorney General of the
Republic of Uganda, Hon. Peter Nyombi and Dr. Julius Tangus Rotich, the Deputy
Secretary General (Finance and Administration) of the East African Community, on
behalf of the 1st and 2nd Respondents, respectively. Hon. Lubega Medad Ssegona
and Hon. Susan Namaganda, Members of Parliament representing the Democratic
Party in the 9th Parliament swore supplementary affidavits in rejoinder to the two
affidavits in reply.
Background
4. It behoves us to mention right from the outset that the instant application arises from
Reference No.6 of 2011 filed in this Court by the first Applicant, a Political Party
Organisation duly registered in the Republic of Uganda and the second Applicant,
its legal advisor.
5. The gravamen of the complaint of the Applicants, if we may put it in a nutshell, is
that the Government of Uganda and its Parliament have not to-date amended the
Rules of Procedures of Parliament, 2006 (hereinafter referred to for brevity as the
“Rules”), in order to conform to the provisions of Article 50 of the Treaty which
372
provides for election of members of the EALA. The Applicants contend that Rules
11(1) and Appendix B r 3, 10and 11 of the Rules in question do not only contravene
Articles 21 (1) and (2); 29(1) (e); 89 (1) and 94(1) of the Uganda Constitution but
Article 50 of the Treaty as well to the extent that they discriminate against and limit
the freedom and right of association of members of the opposition to vie for election
to the EALA and do not allow members of the Uganda Parliament to elect the EALA
members. The Applicants blame the second respondent for failure to supervise the
Uganda Parliament to ensure that the Rules are amended in conformity to Article
50 of the Treaty. It is the Applicants’ fear that, unless constrained by Court, the
Parliament of Uganda is going to use the said Rules in the forthcoming election of
Uganda’s representatives the EALA to their detriment.
6. In the Reference, the Applicants are seeking the following declaratory orders:
(a)That Rules 11(1) and Appendix B r 3, 10 and 11 of the Rules of Procedure of the
Parliament of Uganda, 2006 which are going to be used by the Parliament of
Uganda in the election of the members of the East African Legislative Assembly
in the upcoming elections are inconsistent with and contravene Articles 21(1)
and (2), 29 (1)(e), 89(1) and 94 (1) of the Constitution of the Republic of Uganda
in that the aforesaid infringement will have the effects of limiting the freedom
and rights of the First Applicant to associate in vying for the upcoming elections
for the representatives of EALA. Apart from the foregoing, the aforesaid Rules
complained of do not allow the Members of Parliament of Uganda to elect the
Members of EALA.
(b) That the inaction and the loud silence by both the Government and the Parliament
of Uganda in not amending and realigning the aforesaid Rules which are going
to be used by the Parliament of Uganda in the upcoming elections for members
of EALA in accordance with Article 50 of the Treaty, is an infringement of the
said Article.
(c) That the Secretary General of the East African Community has failed to supervise
the Government of Uganda to ensure that the Parliament of Uganda amends its
laws in order to make them conform to Article 50 of the Treaty.
Submissions:
7. It was strenuously argued by Mr. Justine Semuyaba, who appeared for the Applicants,
that the EALA’s current term expires in June 2012. That campaign for election of the
new Representatives from Uganda are already under way and elections are to be held
sooner than later. That there is every likelihood that the new Representatives for the
EALA will be elected in accordance with the Rules of Procedure of the Parliament
of Uganda, 2006 as was the case when the Representatives to the Pan-African
Parliament were elected.
8. It was Mr. Semuyaba’s main argument that the aforesaid Rules are not in conformity
with Article 50 of the Treaty. He added that in the case of Jacob Oulanya versus the
Attorney General of Uganda, Constitutional Petition No.28 of 2006, which was before
the Constitutional Court of Uganda, the Court held, inter-alia, that the aforesaid
Rules of Procedure infringe several Articles of the Constitution of the Republic of
Uganda. It is his stance that no election should be held until the aforesaid Rules are
amended by the Parliament of Uganda which does not seem ready to do so.
9. It is his contention that if the order sought is not granted, the Uganda Parliament will
go ahead and elect the EALA representatives using the impugned Rules. In that case,
the Applicants will suffer irreparable damage in that they will be disenfranchised
because the Uganda Parliament will conduct the elections on the basis of the
numerical strength rule. Further, it is also his contention that it is not only the
instant Applicants, but also the EALA and the East African Community in general,
that stand to suffer irreparable damage, if it turns out that one third of the EALA’s
members were not legally elected.
10. In support of his stance, he has invited us to invoke the principles enunciated in the
cases decided by this Court, namely Professor Anyang’ Nyongo And Ten Others vs
The Attorney General Of The Republic Of Kenya And Five Others, Ref. No.1 of 2006
and the decision in Application No.9 of 2007 arising from Ref. No.3 of 2007, which
was between the East African Law Society And Three Others and The Attorney General
of The Republic Of Kenya And Three Others.
11. Learned Counsel further contented that the Reference which is before this Court
awaiting a hearing raises more than a prima facie case with a probability of success.
He maintained that the Reference pending in Court raises serious issues which have
to be considered and decided by this Court.
12. Further to the foregoing, the learned Counsel stressed that the Applicants are trying
to stop an election which has not taken place and that they are not going to wait until
the elections are conducted under the impugned Rules because then, there will be
more problems. Citing an observation by this Court in the case of Professor Anyang’
Nyongo, (supra), he contended that it is better to stop a mischief before it takes place
than wait until it has happened.
13. Learned Counsel in support of his submission on this point, also relied on the case
of the European Parliament vs The Counsel of The European Communities, Case
N.C-70 of 1988, where the European Court of Justice intervened in a matter where
Parliamentary Procedures were infringing the European Community Treaty.
14. He thus urged this Court, not unlike in the case he cited, to intervene where Rules
of Procedure of Parliament of a Partner State are infringing the Treaty, pending the
hearing of the main Reference, which may not take place soon.
15. In rebuttal, it was contended by Mr. Wilbert Kaahwa, learned Counsel for the First
Respondent, that Article 50(1) of the Treaty places the responsibility for the process
of the election of the members of the EALA on the respective National Assemblies
and that the elections are conducted “in accordance with such proceedings asthe
National Assembly of each Partner State may determine”. He maintained that there
is no evidence to show that at the material period, the process of election of members
of the EALA is on-going in Uganda as alleged by the applicants. Learned Counsel
relying on paragraph 7 of Dr. Rotich’s affidavit, contended that the Secretary General
has no supervisory role in matters vested in Partner States of the EAC, “save as is
provided under Article 29 of the Treaty”. He further submitted that the letter from
the Speaker’s Office which was in response to the First Applicant’s letter dated 19th
July, 2011, cannot be taken as evidence to support the assertion that the elections are
underway. He thus urged this Court to dismiss the application with costs.
374
16. Ms. Christine Kaahwa, learned Counsel for the Second Respondent, was very brief in
her response. The thrust of her argument was that the Applicants’ contentions are
premised on mere speculation. It is on the basis of the foregoing that she urged the
Court to find and hold that the Applicants have failed to establish a prima facie case.
17. Basing himself on the affidavit of Hon. Peter Nyombi, Mr. Phillip Mwaka, learned
State Attorney, also representing the Second Respondent submitted that subsequent
to the decision in the case of Jacob Oulanya versus the Attorney General of Uganda
(supra), the Government of Uganda commenced the process of amending the Rules
of Procedure of the Parliament of Uganda, 2006 to conform to Treaty and the
Constitution of Uganda.
18. It is also Mr. Mwaka’s submission that the 8th Parliament of the Republic of
Uganda considered and reviewed the Rules of Procedure of the Parliament of
Uganda including the Rules challenged in this Reference and made proposals to the
Government of the Republic of Uganda for consideration. Consequently, the instant
application is premature and it is not in the interest of justice that it be granted.
Determination of the Application by the Court

19. We have carefully gone over the materials placed before us in this application and
after considering the oral submissions of both sides and the law on the subject, our
findings and conclusions are as follows:
20. One, it is trite law that the granting of an interim injunction is an exercise of judicial
discretion which must be exercised judiciously. (See: Sargeant V. Patel (1972) 16
EACA 63; Giella V Cassman Brown Co. Ltd (1973) E.A 358 and Mary Ariviza &
Another Vs. The Attorney General Of The Republic Of Kenya And Another, Application
No. 3 of 2010 arising from Ref. No.7 of 2010.)
21. Two, the principles for granting an application for an interim injunction by courts is
well settled although they have been expressed in various terms over time. They are
that: For an interim injunction to issue, the Court must be satisfied that the applicant
has a prima facie case with a probability of success. An interim injunction will not
normally be granted unless the applicant might otherwise suffer irreparable injury
which would adequately be compensated by an award of damages. .(See: Professor
Anyang’Nyongo (supra). If the court is in doubt, it will decide the application on the
balance of convenience. (See: E.A.Industries vs Trufoods (1972) E.A. 420 and Giella
vs Casman Brown (supra), to mention just a few decisions.
22. In light of these general principles, we now turn to the facts of the present case.
23. Regarding the first principle, the court must be satisfied that the claim is not frivolous
or vexatious and that there is a serious case to be determined by court. (See: American
Cynamid v Ethicon[1975] All ER 504 at 510 per Lord Diplock).
24. It is evident from the Applicants’ affidavits in support of the instant application
and the affidavit deponed by Hon. Peter Nyombi, the Attorney General of Uganda,
sworn on behalf of the Second Respondent, that the impugned Rules were subject of
litigation in the Constitutional Court of Uganda in the Jacob Oulanya’s case (supra).
It is common ground that the said Court found inter-alia that the Rules in question
to be infringing several Articles of the Constitution of the Republic of Uganda. It
is further common ground that the Constitutional Court went ahead to declare the
aforesaid rules to be inconsistent with both the Constitution and Article 50 of the
Treaty.
25. It is further amply clear from the evidence on record and the submissions of both sides
that at the moment, the execution of the aforesaid decision of the Constitutional
Court has been stayed, pending the determination of the appeal before the Supreme
Court of Uganda. Here, we are respectfully in agreement with Mr. Semuyaba,
learned Counsel for the Applicants, that in law, those Rules are operational.
27. Further, Hon. Nyombi deponed in paragraphs 4, 5, 6 and 8 of his affidavit in reply that
the application is premature in: “4. That pursuant to the decision of the Constitutional
Court of Uganda in Constitutional Petition No 38 of 2006; Jacob Oulanyah versus the
Attorney General, the Government of Uganda commenced the process of amending
the Rules of Procedure of the Parliament of Uganda to conform to the East African
Treaty (sic) and the Constitution of Uganda.
5. That the Rules of Procedure are in the process of amendment in order to provide
for the conduct of the election of members of Parliament representing Uganda at the
East African Legislative Assembly when the current term expires.
6. That I was the Chairperson of the Rules, Privileges and Discipline Committee
in the 8th Parliament of the Republic of Uganda which considered and reviewed
the Rules of Procedure of the Parliament of Uganda including the Rules challenged
in this Reference and made proposals to be presented to the 9th Parliament of the
Republic of Uganda for consideration.”
28. However, it is also instructive from the Second Respondent’s affidavit in support of
this application, that on the 19th July, 2011, the First Applicant wrote to the Speaker
of the 9th Parliament of Uganda inquiring about the number of slots available to the
First Applicant in the EALA for which its members may contest.
29. One Helen Nanteza Kawesa, who replied to the aforesaid letter on behalf of the
Speaker on the 26th July 2011, stated inter-alia, as follows:
“Please note that the slots in EALA are determined by the numerical strength of the
Party. It is, therefore, most probable that the Opposition will be entitled to at least
two slots. The final decision will be determined on the floor of the House”.
30. Based on the foregoing, therefore, we find that the complaint by the Applicants is
neither frivolous nor vexatious considering the 1st Applicant’ numerical strength in
Parliament as indicated in the annextures to the affidavits filed on behalf Applicants
vis avis the clear provisions of Article 50 of the Treaty.
31. We are thus of the considered view that the totality of the facts, without expressing
a concluded view, discloses bona fide serious issues that need to be investigated by
this Court. In other words, there is an arguable or prima facie within the meaning
enunciated in the Giella’s case, to mention just one decision in respect of this area
of the law.
32. As stated before in applications of this nature, the finding that there is a prima facie
case with a probability of success is to say no more than that if the Respondents do
not put up any plausible defense or response the Applicants would succeed.
33. The reason is obvious, that at this stage, we must of course; refrain from making any
determination on the merits of the application or any defense to it. A decision on the
merits or demerits of the case must await the substantive consideration of the facts
376
and applicable law after full hearing of the Reference.
34. We have also carefully read the case of the European Parliament versus the Council of
the European Communities (supra) where the European Court of Justice intervened
in a matter where Parliament Procedures were infringing the European Community
Treaty. We are fully aware, of course, that although it is not binding on us, it is of
persuasive value to this Court.
35. We now come to the second hurdle that the Applicants have to cross, namely,
whether an irreparable injury will be occasioned to the Applicants if the Court does
not interfere.
36. We are of the considered view, based on the totality of the available affidavit evidence on
record, that if the application is denied and the elections of Uganda’s Representatives
to the EALA take place under the impugned Rules and if the Reference is eventually
determined in favour of the applicants, not only the Applicants but also the EALA and
the East African Community itself, stand to suffer irreparable injury. This is not only
because the Applicants will have been denied an opportunity to send Representatives
to the EALA but, as this Court observed in a similar application in the Anyang’
Nyongo Reference (supra), there will be improperly elected Representatives in the
EALA and the credibility of the EALA will be questionable. It is our view that no
amount of damages would ever be able to adequately compensate the Applicants for
that kind of injury.
37. We, therefore, find and hold that the second criterion for the grant of an interim
injunction has also been satisfied.
38. On the question of balance of convenience, while we note from the affidavit of
the Attorney General Hon. Peter Nyombi that the Government of Uganda has
commenced the process of amending the said Rules, and we have no reason to doubt
the Hon. Attorney General, the process seems to be too slow in the circumstances. It
is accordingly our considered view that since the matter is already before this court,
it would do no harm to the Respondents if the election process of Representatives of
the Republic of Uganda to the EALA is halted for the time being to await the final
outcome of the Reference which is pending in the Court. It is our finding, therefore,
that the balance of convenience favours the Applicants.
39. In the premises and for the reasons given, we allow the application and issue the
following orders:
1) The Attorney General and the Parliament of the Republic of Uganda are hereby
restrained from conducting elections of Representatives of the Republic of
Uganda to the EALA until the determination of the Reference No. 6 of 2011.
2) The costs of the application shall be in the cause.
It is so ordered.
****
Appeal from the Ruling in Reference No. 3. of 2010 in the First Instance Division by:
J. Busingye, PJ; M. S. Arach Amoko, DPJ; J. J. Mkwawa, J. B. Butasi and B. P. Kubo, JJ,
dated 29th June, 2011
Attorney General of the Republic of Kenya And Independent Medical Legal Unit
Before: H. R. Nsekela P; P. K. Tunoi VP; E. R. Kayitesi, L. Nzosaba and J. M. Ogoola, JJA

March 15, 2012
Earliest knowledge of the acts complained of applies in the computation of time -

Improper raising of preliminary objections -No continuing Treaty violation- States’
responsibilities to their citizens and residents - Whether the learned Judges erred in
deciding that they had jurisdiction to hear the Reference and it was not time barred.
Articles 23(3), 27(2), 30(2) and 35A of the EAC Treaty - Rules: 68(5) and 77 of the
EACJ Court Rules of Procedure, 2010.
The Appellant filed this Appeal challenging the Ruling of the First Instance Division
concerning Reference No. 1 of 2011. The Appellant had raised preliminary objections
inter alia averring that the Court had not jurisdiction to entertain the Reference as it
did not comply with the provisions of limitation of time. After hearing the objection,
on 29th June, 201, the First Instance Division found that the Court had jurisdiction
to entertain the Reference and that the Reference was not barred by limitation of
time. Subsequently, this Appeal was lodged contending that the court had erred in
law.
Held:
1) Only points of pure law unstained by facts or evidence, should be raised as
preliminary objections. The improper raising of points by way of preliminary
objections unnecessarily increases costs and, on occasion, confuses the issues.
2) There was no enabling provision in the Treaty to disregard the time limit set by
Article 30(2). This Article 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; nor is there any power to extend that time limit. The Respondent
came to the knowledge of the acts complained of between 2006 and February, 2009
which was one-and-half years before the Reference was brought. Thus the Reference
was time –barred and the appeal was allowed.
Cases cited:
Ferriera Valsabbia Spa v EC Commission OJ C2009, 9.8.84 p.6, para 14, ECJ Case 209/83
James Katabazi & 21 Others v EAC Secretary General & AttorneyGeneral of Uganda,
Mukisa Biscuits Manufacturing Co. Ltd v. West EndDistributors Ltd [1969] EA 696.
Nebec v EC Commission [1975] ECR 145 at 151, ECJ, Case 24/69
378
Judgment
Factual Background
1. The Appellant filed this appeal in the Appellate Division of this Court, challenging
the Ruling of the First Instance Division dated 29th June, 2011 concerning Reference
No. 1 of 2011 by Independent Medical Legal Unit (``IMLU``), a Non-Governmental
organization operating in Kenya. That Reference had its origins in the alleged
executions and actions of torture, cruelty, inhuman and degrading treatment of
over 3,000 Kenyan residents that took place in the Mount Elgon District of Kenya,
between 2006 and 2008. Consequent upon the tragic situation, the Government of
the Republic of Kenya was accused of failure to investigate those atrocities and of
not taking any administrative, judicial or other measure to prevent or punish the
perpetrators.
2. The Respondent in the First Instance Division canvassed the following five
Preliminary Objections:
(1) The Jurisdiction of the Court;
(2) Non-compliance with Rule 24 of the EACJ Rules;
(3) Misjoinder of the 2nd, 3rd, and 4th Respondents;
(4) Cause of action against the 5th Respondent; and
(5) Limitation.
3. The First Instance Division held that the Court had jurisdiction to entertain the
Reference; and decided that the Reference was not barred by limitation of time.
4. On 29th September 2011, the Appellant lodged an appeal against part of the above
decision of the First Instance Division, citing nine grounds of appeal. The Appellate
Division of the Court is seized of this appeal under Articles 23(3) and 35A of the
Treaty establishing the East African Community (the ``Treaty``), and Rule 77of the
EACJ Court Rules of Procedure.
Appeal on Points of Law: Jurisdiction and Limitation.

5. The Court agreed with the parties to consolidate the nine grounds of appeal cited in
the submissions of the Appellant into two points of law, namely:
(i) The learned Judges erred in law and in fact in arriving at the decision that the
Court has jurisdiction to hear the Reference;
(ii) The learned Judges erred in law and in fact in arriving at their decision that the
Reference is not time barred.
Preliminary Objections
6. Before considering the above substantive two grounds of appeal, the Court wishes
to address, at the outset, one issue of paramount judicial importance affecting
the Court’s practice and proceedings, namely, the treatment to be accorded to
applications for preliminary objections. In the present Reference, the Attorney
General of the Republic of Kenya as Respondent in the Reference before the Court
below, raised two preliminary objections, challenging the jurisdiction of this Court
to entertain this matter; as well as the time limitation on the Respondent/Applicant
to institute this matter before the First Instance Division.
AG Kenya v Independent Medical Legal Unit
379
7. The Court below, in as far as can be ascertained, dealt with the two issues as a matter
of course. In its scheduling conference of 2nd December 2010, as indeed in its Ruling
of 29th June 2011, the Court below reiterated the fact that:
“This Ruling is in respect of preliminary objections raised by the Respondents to the
Reference when it came for scheduling.”
8. It is evident that the Court and all Counsel proceeded to treat these challenges
as matters of preliminary objection. There was absolutely no challenge, let alone
discussion, of the validity or otherwise of whether these matters properly constitute
points of preliminary objection. None of the Counsel (nor indeed the Court itself),
raised any such concern or objection and none was argued, canvassed or in any
way adverted to. Instead, all concerned proceeded to address the twin issues of
jurisdiction and limitation – as preliminary points of law. They all did this on the
mutual assumption that, indeed, these were valid points of preliminary objection.
All gave no heed at all to the proper procedure for entertaining such preliminary
objections.
9. This Court wishes to set the record straight, concerning the appropriate practice
and procedure to adopt when faced with an application for a Preliminary Objection.
The procedure was firmly established by the East African Court of Appeal in the
celebrated case of Mukisa Biscuits Manufacturing Co. Ltd vs. West End Distributors
Ltd [1969] EA 696.
10. The purported preliminary objection in the Mukisa case was an application for
summary dismissal of the suit for want of prosecution. The trial court overruled
the application after hearing the Appellant`s counsel, but without calling upon the
opposite counsel to reply; and without reading its reasons in open court. The Court
then gave judgment in the substantive suit.
11. Upon appeal of that judgment, the issue of the original preliminary objections was
raised afresh. The Appellant`s counsel contended that the matter (of summary
dismissal of the suit for non-prosecution), had been raised under the guise of a
preliminary objection – when it was not. It should have been raised in the form of an
application by way of motion – accompanied by affidavits, and a reply by the plaintiff
giving reasons for the delay in prosecuting the suit. The Court (Law, JA) emphasized
that the proper form should have been a motion, and not a preliminary objection –
which it was not. He underlined the essence of a preliminary objection as being:
“A point of law which has been pleaded, or which arises in the course of the pleadings
and which, if argued as a preliminary point, may dispose of the suit”.
12. The President of the Court (Sir Charles Newbold) – mindful of the paucity of “facts
in that case, and the inevitable dispute as to what were the facts” – gave a succinct
elaboration of this point, thus:
“a preliminary objection is in the nature of what used to be a demurrer. It raises a
pure point of law which is argued on the assumption that all the facts pleaded by the
other side are correct. It cannot be raised if and fact has to be ascertained or if what
is sought is the exercise of judicial discretion . The improper raising of points by
way of preliminary objection does nothing but unnecessarily increase costs and, on
occasion, confuse the issues. The Court considers that this improper practice should
stop”.
380
13. It is abundantly clear from the above, therefore, that the adoption of a wrong
procedure, disadvantages both the Applicant and the Respondent, as well as the
judicial process itself. This is uniquely so where, as in this present Reference, the
Parties disagreed virtually on every fact that gave rise to the background to the suit.
14. It is equally clear that the improper raising of points by way of preliminary
objections “does nothing but unnecessarily increase costs and, on occasion, confuse
the issues”. The Court must, therefore, insist on the adoption of the proper procedure
for entertaining applications for preliminary objections. In that way, it will avoid
treating, as preliminary objections, those points that are only disguised as such;
and will, instead, treat as preliminary objections, only those points that are pure
law: which are unstained by facts or evidence, especially disputed points of fact or
evidence or such like.
Jurisdiction
15. The Appellant`s learned Counsel, Mr Ombwayo, raised the issue of the jurisdiction
of this Court, submitting that “The learned Judges erred in law and in fact in arriving
at the decision that the Court has jurisdiction to hear the Reference”. He explained
that the Reference in the Court below dealt with human rights violations carried out
by the Respondent in contravention of the fundamental principles of the Treaty and
similar provisions of other international conventions: notably Articles 4, 5(1), (5)(3)
(f), and 6(d) of the Treaty.
16. Further, Mr Ombwayo asserted Article 27(2) presupposes that the Court has no
jurisdiction to entertain a Reference based on a breach by a Partner State of the rights
of her people, unless and until the EAC Council of Ministers will have determine so;
and a Protocol operationalizing such extended jurisdiction will have been signed.
17. Mr Ombwayo forcefully submitted that the Reference does not merely refer to
violations of human rights, but is indeed based on violations of human rights; because
even the order sought by the Claimants in the Reference called for the enforcement
of the human rights of the above victims..
18. In response to Mr Ombwayo`s submissions, learned counsel for the Respondent, Ms
Kilonzo, averred that the State failed to investigate the allegations of human rights
violations in the Mount Elgon District.
The Government`s failure to investigate those human rights violations, to prosecute
and punish the perpetrators, and to afford relief to the victims, constituted a breach
of the Treaty principles of the Rule of Law, Good Governance, promotion and
protection of Human and People’s rights, as expressly stipulated in Articles 5, 6 and
7 of the Treaty; and contravenes several International Conventions, International
Law, as well as the Constitution and Laws of the Republic of Kenya.
19. As regards, the jurisdiction of the Court, Mr Deya (Amicus Curiae), stated that Article
27 of the Treaty implies that there is already jurisdiction for the Court. The Court has
a wide mandate in that its duties include delivery of justice in the matter, to ensure
that there is interpretation of the Treaty, and also to ensure that there is compliance
with the Treaty. Taking into account the fact that the alleged acts of omission and
commission constituted mass atrocities and violations of criminal and civil laws, the
Court should address all these from the point of view of the responsibility of the State
381
towards its citizens. From that standpoint, this Court has jurisdiction to entertain
the Reference.
20. Having regard to the above submissions of all three Counsel, we take the lower
Court`s Ruling as our starting point for consideration of this ground of appeal on
jurisdiction. That Court appears to have adopted, as its own decision, the sentiments
expressed in the case of James Katabazi & 21 Others v EAC Secretary General &
Attorney General of Uganda (Reference No. 1 of 2007): Judgment of 1st November
2001 – namely, that:
“While the court will not assume jurisdiction to adjudicate Human rights disputes, it
will not abdicate from exercising its jurisdiction of interpretation under Article27(1)
merely because the reference includes allegations of human rights violations”.
21. On that basis, the Court then pronounced its own substantive decision in virtually
identical terms thus:
“Similarly, in this reference, the Court will not abdicate duty to interpret the Treaty
merely because Human Rights violations are mentioned in the Reference”.
22. It is from the above decision that the aggrieved Party came to us on appeal. The
issue of jurisdiction, brought before this Appellate Division, is indeed a point of law
stipulated by Article 35A of the Treaty. However, it appears that the Ruling of the
First Instance Division relied only on Katabazi case. It is, therefore, quite clear that
the First Instance Division abstained from categorically and effectually analyzing the
allegations pleaded and discussed by both parties, to demonstrate how those facts
were related to the Court`s decision on jurisdiction.
23. The significance and genius of the Katabazi case is not so much in the Court`s famous
refusal “not to abdicate” its jurisdiction. Rather, it was the Court`s ability to find and
supply, through interpretation of the Treaty, the source and basis for the Court`s
jurisdiction in the circumstances of the case then before the Court. To this end, the
Court in the Katabazi case proceeded to probe, to examine and to asses at great
length and in great depth the source that allowed the Court to claim and exercise
jurisdiction in the matter. They found and supplied the cause of action flowing from
the Treaty (that was different and distinct from violation of the human rights) on
which to peg the Court`s jurisdiction. Similarly, in the instant Reference, the Court
below ought to have gone beyond `` non abdication of power``. It should have delved
into the cause of action and other considerations that provide the legal linkage and
basis for this Court`s jurisdiction in the instant Reference, which is separate and
distinct from human rights violations. Sadly, they did not do so. Against such a
linkage or nexus, Katabazi case has no mystic properties of a magic wand that cures
all.
24. In these circumstances, we are of the view that the decision taken by the First
Instance Division that it would not abdicate its jurisdiction of interpretation under
Article 27(1) merely because the Reference includes allegations of Human rights
violations``, was sound, because the EACJ is the Institution mandated to determine
whether a Partner State has or has not breached, infringed, violated or, otherwise
offended the provisions of the Treaty. However, we consider that the issue of
jurisdiction as canvassed before the Court below, was a mixed question of both fact
and law. Therefore, to come up with a decision on jurisdiction, the First Instance
382
Division ought to have analyzed the allegations of lack of jurisdiction in the light of
both the law and the facts as presented before that Court. Yet, it did not categorically
and emphatically do so.
25. The Court`s reasoning and analysis of these issues was submerged and drowned in
the lone reference to the Katabazi case, without the Court giving its own reasoning
for its own decision. In doing so, the Court failed to observe the express requirement
of Rule 68(5) of this Court`s Rules of Procedure, namely to provide the reasons for
its judgment. That Rules provides in relevant parts, as follows:
“(5) The judgment of the Court shall contain”`:
(f) the points for determination,
(g) the decision arrived at,
(h) the reasons for such decision``.
26. Moreover, it also deprived both Parties to the Reference as well as us, the Appellate
Division, of knowing the reasons for its judgment on this particular issue.
27. As adverted to above, Counsel Deya contended before us that the Court should have
addressed the question of jurisdiction from the point of view of the responsibility of
the State towards its citizens. We agree. The respective Partner States’ responsibilities
to their citizens and residents have, through those States voluntary entry into the
EAC Treaty, been scripted, transformed and fossilised into the several objectives,
principles and obligations now stipulated in, among others, Articles 5, 6 and 7 of
the Treaty, the breach of which by any Partner State, gives rise to infringement
of the Treaty. It is that alleged infringement which, through interpretation of the
Treaty under Article 27(1), constitutes the cause of action in a Reference, such as the
instant Reference. It is not the violations of human rights under the Constitution and
other Laws of Kenya or of the international community that is the cause of action in
the Reference at hand. The Court below could have explored all these and more to
establish the legal foundation for this Court’s jurisdiction in this Reference. It did not
do so; and neither did it supply other substantive reasons for its peremptory holding.
28. In the premises,this Appellate Division could have optedto remitthe matter back to
the First Instance Division for a proper determination of the question of jurisdiction,
especially in as much as that Division did proceed to adjudicate the second issue before
it, namely: the time limitation imposed on the Applicant to bring its complaint to the
Court within two months of the Government`s action. Upon reflection, however, we
decline to do so. This is because the issue of limitation of time is equally before us in
this appeal, as a ground of appeal. That ground, like the ground of jurisdiction of this
Court, is properly before us, pursuant to Articles 23(3) and 35A of the Treaty.
Limitation
29. The main issue for determination before the Court below was whether or not the
Reference was time barred. The Appellant averred that the acts complained of took
place within a specified period of time which could be determined. However, the
Respondent contended that the matters aforesaid are matters of a criminal nature
which in effect concerned the Rule of Law and Good Governance, and do not actually
have any statutory time limits, but had remained in limbo and unresolved. The Court
below after considering both oral and written submissions canvassed before it by
383
Learned Counsel for the parties, held as follows:

“Upon careful consideration of this point of objection, it is our considered view, that
Kenya had failed to provide any remedy for the alleged violations. We find that such
action or mission of a Partner State cannot be limited by mathematical computation
of time.”
30. Mr Ombwayo, contended before us that Article 30(2) of the Treaty was unambiguous
and categorical that the Reference ought to have been instituted within the time
specified therein. Moreover, he argued, it was easy to ascertain and subject the time
within which the Reference could be lodged to mathematical computation of time on
the basis of the reports of the tragic events in the Mount Elgon District since those
reports were recorded and widely publicized.
31. Ms Kilonzo adopted her submissions in the Court below and added that there is no
limitation of time in failing to file a reference on lack of investigation by the State
because the obligation to investigate is of a continuing nature. She gave an example
of persons accused of rape or murder who cannot challenge the statute of limitation
against the crimes charged. Similarly, she contended, that the State cannot avail itself
of such argument.
32. Ms Kilonzo also referred us to the case of Moiwana Community v Surnam (Inter-
American Court of Human Rights: Judgment of June 15, 2005). This was a case on
human rights with facts similar to the matter now before us. In that case the State of
Surinam in 1986 attacked a village called Moiwana and massacred 40 men, women
and children. Those violations occurred in 1986, when Surinam had not yet become
a signatory to the American Convention on Human Rights. In fact, it became a
signatory on the Convention in 1987, one year after the State agents had attacked
the village. The case was brought before the Court of Human Rights in 2005, 20
years after the fact; and the State submitted that the Court lacked jurisdiction to hear
the application because the events in question took place before Surinam became a
signatory to the Convention.
33. It is worthy of note that in the Moiwana case, the Court distinguished between two
violations; (i) those of a continuing nature; and (ii) those which had clearly occurred
in the past.
Article 30 of the Treaty provides as follows:
“(1) Subject to the provisions of Article 27 of this Treaty, any person who is resident
unlawful or is an infringement of the provisions of this Treaty.”
(2) 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…”
34. It is clear that the Treaty limits References over such matters like these to two
months after the action or decision was first taken or made, or when the Claimant
384
first became aware of it. In our view, the Treaty does not grant this Court any express
or implied jurisdiction to extend the time set in the Article above. Equally so, the
Court below could not rule otherwise on the face of the explicit limitation in Article
9(4)to the effect that the Court must act within the limits of its powers under the
Treaty.
35. To borrow from European Community jurisprudence, it is also a well established
principle of law that the European Court of Justice can only act within the limits of
the powers conferred upon it by the existing Treaties or any later conventions. Its
jurisdiction must therefore be from specific provisions and does not extend beyond
the defined area – See Halsbury`s Laws of England, 4th Edn., Volume 51.
36. It follows, therefore, in our view, that this Court is limited by Article 30(2) to
hear References only filed within two months from the date of action or decision
complained of, or the date the Claimant became aware of it.
37. In our view, there is no enabling provision in the Treaty to disregard the time limit
set by Article 30(2). Moreover, that Article 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; nor is there any power to extend that time limit – see
Case 24/69 Nebec v EC Commission [1975] ECR 145 at 151, ECJ. Again, no such
intention can be ascertained from the ordinary and plain meaning of the said Article
or any other provision of the Treaty.
38. The reason for this short time limit is critical – it is to ensure legal certainty among
the diverse membership of the Community: see Case 209/83 Ferriera Valsabbia Spa v
EC Commission OJ C2009, 9.8.84 p.6, para 14, ECJ quoted in Halsbury’s Laws (supra)
Para 2.43.
39. It must be made clear at the outset that the main complaint against the Appellant
and the Government of Kenya is that it failed to investigate the alleged atrocities. It is
obvious that the Government could not investigate unless it had knowledge of those
violations. Various publications, reports and documents show beyond doubt that the
Government had knowledge of those atrocities and the Respondent knew that the
Government had the said knowledge through the following reports exhibited in the
Court below:
i) The People Daily of 27 November, 2009 where IMLU had urged the Government
of Kenya to make public the report of May 2008.
ii) Kenya National Commission on Human Rights subsequently released a report
entitled “The Mountain of Terror” - 2008.
iii) The Report by Human Rights Watch released In July 2008 entitled “All the Men
Have Gone”.
iv) The United Nations on May 26th, 2009 published a “Report of the Special
Rapporteur Phillip Alston on extrajudicial, summary or arbitrary executions”.
v) The wide media and electronic coverage (July – August 2008) publicised the
executions, torture and other atrocities committed against Kenyans resident in
Mount Elgon by the four Respondents.
40. After consideration of the various reports, narrated herein above and whose copies
were made public and availed to the Respondent, the Court finds that, firstly IMLU
came to the knowledge of the acts complained of, at the earliest, in 2006; and, at the
385
latest, in February, 2009; which was at least one-and-half years before the Reference
was brought. Secondly, the reason advanced that there was no way to compute time
is irrelevant, since all those reports were dated and widely circulated to the Public.
41. For the above reasons, we conclude that IMLU filed the Reference out of the
prescribed time and consequently, the Reference is time - barred for not complying
with the amended provision of Article 30(2).
Conclusion
42. In the result: This appeal is hereby allowed.
The Reference lodged in the First Instance Division on 12th July 2010, is hereby
ordered struck out for having been filed outside the time limit prescribed under
Article 30(2) of the EAC Treaty.
Each party shall bear its own costs of the appeal.
****
East African Court of Justice- Appellate Division
Appeal from the Ruling in Reference No. 6 of 2010 in the First Instance Division by: J.
Busingye PJ, JJ Mkwawa, B. P. Kubo, JJ dated 24th August, 2011
Alcon International Limited And The Standard Chartered Bank of Uganda, The
Attorney General of Uganda and Registrar of the High Court of Uganda
Before: Harold R. Nsekela P, Emily R. Kayitesi, JA, James Ogoola, JA

March 16, 2012
Content of judgments- No concurrent jurisdiction –Reinstatement of Reference -

Preliminary objections-Whether the Court erred in holding that the Reference against
the 1st, 2nd and 3rd Respondents was improper - Whether they erred by failing to
make a finding all the preliminary issues raised by the Respondents-Whether the
Court failed to appreciate the pleadings and by failing to hold that the Appellant and
the Respondents were not parties to the proceedings pending in the Supreme Court of
Uganda- Whether the Court erred in holding that parallel proceedings in two different
Courts would cause confusion between the EACJ and the Courts in Uganda resulting
in an execution stalemate.
Articles: 23, 35A of the EAC Treaty- Rules: 68 (5), 77, 92 of the EACJ Rules of
Procedures, 2010
The Appellant was contracted by the National Social Security Fund, Uganda (NSSF)
to construct ‘Workers House’, in Kampala. NSSF terminated the agreement and
this set in motion arbitration proceedings under the contract. The Appellant was
the successful party in the arbitration proceedings. This arbitral award was being
contested in the courts in Uganda and the matter was before the Supreme Court in
which NSSF sought to set aside the arbitral award.
While the matter was still being litigated in the courts in Uganda, the Appellant
herein instituted Reference No. 6 of 2010 in the First Instance Division against the
above-mentioned Respondents seeking inter alia: an interpretation and application
of Articles 27 (2) and 151 of the Treaty together with Articles 29 (2) and 54 of the
Protocol on the Establishment of the East African Community Common Market
on the enhanced Jurisdiction of this Honourable Court as a Competent Judicial
Authority with regard to the enforcement of trade and resolution and settlement of
disputes for the protection of cross-border investments.
During the Scheduling Conference, the 1st Respondent raised a number of preliminary
objections on points of law. After dealing with the preliminary objections, the First
Instance Division struck out the Reference with costs.
The Appellant then appealed from the Ruling dated 24th August, 2011.
387
Held:
1) The purpose of raising preliminary objections is not to shut out or stifle legitimate
adjudication. While considering the preliminary objection, the court below descended
into considering facts and not law. The court below was expected to deal with “pure
points of law” which would dispose of the Reference. The issue of jurisdiction had to
be answered first before proceeding with any other issue.
2) In view of the decision it had reached, the court below did not deem it necessary to
consider and determine the remaining issues. This was in contravention of Rule 68
(5) as all the issues raised in the Scheduling Conference had to be decided upon.
3) The cause of action before this Court was an alleged breach or infringement of the
Treaty and not an arbitral award for breach of contract as in the Uganda courts.
There was, therefore, no likelihood of a conflict or a clash between this Court and the
courts of Uganda.
4) The Treaty and this Court’s Rules of Procedure do not give the Appellate Division
concurrent jurisdiction with the First Instance Division.
5) The First Instance Division did not discuss or make a finding of whether it had
jurisdiction to entertain the Reference. This was a fundamental issue which had to
be decided as a threshold issue. Therefore the Ruling and Order of the First Instance
Division was set aside, and Reference No. 6 of 2010 re-instated.
Cases cited:
Ashmore v Corp of Lloyds[1992] 2 A11ER 486
Fanuel Mantiri N’gunda v Herman MantiriNg’unda and 20 Others, Court of Appeal
Tanzania, Civil Appeal No. 8 of 1995(unreported)
Owners of the Motor Vessel “LillianS” v Caltex Oil (Kenya) Limited, [1989] KLRI
Judgment
1. The present case is an appeal by Alcon International Limited, a limited liability

company incorporated in the Republic of Kenya, against the decision of the First
Instance Division of the Court in Reference No. 6 of 2010. The Standard Chartered
Bank of Uganda; the Attorney-General of the Republic of Uganda; and the Registrar
of the High Court of Uganda are the 1st, 2nd and 3rd Respondents, respectively.
2. The substance of the dispute between the Parties as placed before the court below is
as follows: The Appellant company was contracted by the National Social Security
Fund, Uganda (NSSF) to construct ‘Workers House’, in Kampala. NSSF terminated
the agreement and this set in motion arbitration proceedings under the contract. The
Appellant was the successful party in the arbitration proceedings and was awarded
US $8,858,469.97. This arbitral award is being contested in the courts in Uganda
and the matter is now before the Supreme Court as Civil Appeal No. 15 of 2009, in
which NSSF wants to set aside the arbitral award.
3. While the matter is being litigated in the courts in Uganda, the Appellant herein
instituted Reference No. 6 of 2010 in the First Instance Division against the above-
mentioned Respondents seeking the following reliefs –
1) That this Honourable Court be pleased to interpret and apply Articles 27 (2)
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and 151 of the Treaty for the 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 Community Common Market on the enhanced Jurisdiction
of this Honourable Court as a Competent Judicial Authority with regard to the
enforcement of trade and resolution and settlement of disputes for the protection
of cross-border investments.
2) That this Honourable Court be pleased to declare that the signing of the Protocol
on the Establishment of the East African Community 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.
3) That 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 jurisdiction to enforce that obligation or duty
expeditiously.
4) That this Honourable Court be pleased to direct the Respondents jointly and/or
severally to pay to the Claimant the decretal sum of US$8,858,469.97 together
with interest and costs in full under the Bank and costs in full under the Bank
Guarantee dated 29th October, 2003.
5) That this Honourable Court direct the Respondents jointly and or severally to
pay to the Claimant general damages assessed by this Court.
6) That this Honourable Court direct the Respondents jointly and or severally to
pay interest on the sums of money due on such rates and from such dates as this
Honourable Court should direct.
7) That this Honourable Court be pleased to make such further or other orders as
may be necessary in the circumstances.
8) That the costs of this Reference be borne by the Respondents in any event.
4. The 1st Respondent during the Scheduling Conference conducted by the First
Instance Division under Rule 53 of the Court’s Rules of Procedure raised a number
of preliminary objections on points of law. At the end of the scheduling conference,
the agreed preliminary objections were as follows –
1) Whether the Reference is properly before the Court as against the 1st and 3rd
Respondents;
2) Whether the Reference is time barred;
3) Whether the Claimant has rights under the Protocol on the Establishment of the
East African Community Common Market in respect of acts which arose prior
to the coming in force of the Protocol.
5. Before hearing the merits of the substantive Reference, the court below had to deal
first with the above mentioned preliminary objections. Learned Counsel for the
Parties filed their respective written submissions on the issues agreed upon and
made oral submissions as well. In the final analysis, the court below struck out
the Reference with costs. It is against this background that the Appellant has now
appealed to the Appellate Division of the Court.
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6. The Appellant lodged a total of fifteen (15) grounds of appeal in its memorandum of
appeal. In terms of Rule 99 of the Rules of Procedure, a Scheduling Conference was
held and the parties agreed upon the following five (5) grounds of appeal, namely
that –
1) The learned Honourable Judges erred in law and fact in holding in the first place
that the Reference was improperly before the Court as against the 1st, 2nd and
3rd Respondents and striking out the Reference before making a finding as to
whether the Court itself had jurisdiction to entertain the Reference.
2) The learned Honourable Judges erred in law and fact by failing to address and/or
make a finding on each of the only preliminary issues raised by the Respondents
and which were the subject of the Ruling.
3) The learned Honourable Judges misdirected themselves and erred in law and
fact by failing to appreciate the pleadings of all the Parties before the Court and
failing to hold that the Appellant and the Respondents were not parties to the
pending proceedings in the Supreme Court of Uganda.
4) The learned Honourable Judges erred in law and fact with regard to the
intepretation and application of the provisions of the Treaty and the Protocol
by failing to pinpoint which provisions of the Treaty and the Protocol ousts the
jurisdiction of the Honourable Court on the basis of pendency of proceedings in
the National Courts.
5) In view of the provisions of Article 33 (2) of the Treaty, the learned Honourable
Judges erred in law by holding, inter alia, that:
(a) it would be absurd to have parallel proceedings in two different Courts;
(b) that a clash of decisions would cause confusion between the Court and the
Courts in Uganda;
(c) it would result in an execution stalemate.
7. Mr. Athuok learned Counsel for the Appellant adopted the written submissions
that were filed in the Court of First Instance. The Appellant categorically denied
that it was a party to Supreme Court Civil Appeal No. 15 of 2009, National Social
Security Fund and N.H. Sentongo t/a Sentongo and Parties vs Alcon International
Limited. This was a contested issue and could not form the basis of a preliminary
objection. Learned Counsel added that the First Instance Division failed to address
the issues based on the interpretation of the Treaty for the Establishment of the East
African Community (“the Treaty”) and the Protocol on the Establishment of the
East African Community Common Market (Common Market Protocol) and so this
Division should interpret the Treaty where the court below failed to do so.
8. Mr. Athuok was of the view that this Division had jurisdiction to dispose of the
preliminary objections on appeal. He contended that the court below erred in law in
finding that the Reference was improperly before it and in striking it out even before
making a finding as to whether the Court had jurisdiction. He added that they had
submitted that the Court had jurisdiction under the Treaty and the Common Market
Protocol. The court below had a duty to intepret Articles 27 and 30 of the Treaty as
well as Articles 29 and 54 of the Common Market Protocol in order to show that the
Court had jurisdiction to entertain the Reference.
9. Mr. Tumusingize,learned Counsel for the 1st Respondent submitted that Article
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54 of the Common Market Protocol did not extend the jurisdiction of the Court
to handle disputes under the Common Market Protocol. Article 27 of the Treaty
was not amended to cater for the purported extended jurisdiction. In addition,
he submitted that there was no rule or law requiring that the court below should
have addressed all the preliminary points of law raised and on the available material
before the court below, the court below was entitled to hold that there were pending
proceedings in the Supreme Court of Uganda.
10. Ms. Patricia Mutesi, learned Counsel for the 2nd and 3rd Respondents, adopted the
submissions made before the court below. She contended that the court below had
discretion in any matter before it to determine whether it should hear everything
that had been placed before it. She added that the court below was prudent and wise
to consider the on-going proceedings in the courts of Uganda.
11. With all due respect to the learned Counsel for the 1st Respondent, we are beginning
to witness in this Court a growing tendency to commence the trial of References not
on their merits but with preliminary objections on points of law. Perhaps it is an
expedient way of disposing of References, but this may not end up that way. More
often than not, it is an unnecessary costly detour of the proceedings. We wish to
associate ourselves with these pertinent observations made by Lord Templeman in
Ashmore V Corp of Lloyds [1992]2 A11ER 486 at page 493 where he stated thus –
“The Parties and particulary their legal advisers in any litigation are under a duty
to cooperate with the courts by chronological, brief and consistent pleadings which
define the issues and leave the judge to draw his own conclusions about the merits
when he hears the case. It is the duty of counsel to assist the judge by simplification
and concentration and not to advance a multitude of ingenious arguments in the
hope that out of ten bad points the judge will be capable of fashioning a winner.”
12. Before we move on to discuss and determine the substantive grounds of appeal,
it is instructive to briefly mention the nature of the jurisdiction of the Appellate
Division of the Court. It is not every decision of the First Instance Division which is
appealable. Article 23 (3) of the Treaty provides as follows –
“23(3) The First Instance Division shall have jurisdiction to hear and determine at
first instance subject to a right of appeal to the Appellate Division under Article 35A
any matter before the Court in accordance with this Treaty.” Appeals to this Division
are governed by Article 35A of the Treaty as amended. It provides as follows – “35
A. An appeal from the judgment or any order of the First Instance Division of the
Court shall lie to the Appellate Division on –
(a) points of law;
(b) grounds of lack of jurisdiction;
13. The Appellate jurisdiction of this Division is derived from the Treaty. It is evident
from Article 35A above that matters of fact are in principle the exclusive province
of the First Instance Division. Consequently prospective appellants to this Division
of the Court should bear in mind Article 35A and Rule 77 of the Rules of Procedure
when lodging their respective appeals.
14. With this background, we now proceed to consider the first ground of appeal. This
was to the effect that the court below struck out the Reference before making a
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finding on the jurisdiction of the Court to entertain the Reference in the first place.
The first preliminary objection was divided into four sub-issues as follows –
(i) That the 1st Respondent is neither a Partner State nor an Institution of the
Community in terms of Article 30 of the Treaty;
(ii) That the Court had no jurisdiction to entertain and determine the Reference
under Article 54 (2) of the Protocol;
(iii) That the Court had no jurisdiction under Article 27 (2) of the Treaty;
(iv) That it would be a duplication of proceedings to entertain the Reference, since
there are pending proceedings in the courts in Uganda.
15. Learned Counsel for all the parties, both in their written submissions and orally
before us covered all these issues. However, the court below discussed the fourth
sub-issue alone. The court below stated as follows –
“First and foremost, we find it necessary to associate ourselves with the submission
of the learned Counsel for the 1st Respondent that there is overwhelming evidence
from the material now before us that there have been and still are several cases in the
courts of Uganda in which the instant Claimant is directly involved.”
16. With this finding, the court below was of the view that it was inappropriate for the
appellant to pursue its claims in two different fora. On this ground alone, the court
below struck out the Reference. The sub-issue discussed above by the court below,
was not, with respect, a preliminary objection. In the oft-cited case of Mukisa Biscuit
Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law, J.A. stated
at page 700 –
“So far as I am aware, a preliminary objection consists of a point of law which has
been pleaded, or which arises by clear implication out of the pleadings, and which if
the jurisdiction of the court, or a plea of limitation, or a submission that the parties
are bound by the contract giving rise to the suit to refer the dispute to arbitration,”
And Sir Charles Newbold, P. had this to say at page 701 –
“A preliminary objection is in the nature of what used to be a demurrer. It raises a
pure point of law which is argued on the assumption that all the facts pleaded are
correct. It cannot be raised if any fact has to be ascertained or if what is sought is the
exercise of judicial discretion.”
17. The matters discussed by the court below are disputed facts. This is evident from the
1st Respondents’ response to the Reference in paragraphs 3, 4, 7, 8, 9 and 10. The
2nd and 3rd Respondents’ joint response also do not agree with the facts pleaded
by the Appellant. From the parties’ pleadings themselves, these issues are contested.
The court below descended into considering facts and not law. We are in respectful
agreement with the Respondent that this sub-issue was not a valid preliminary
objection. The court below was expected to be dealing with “pure points of law” which
would dispose of the Reference. The purpose of raising preliminary objections is not
to shut out or stifle legitimate adjudication. Preliminary objections are particularly
unhelpful and are without basis in the context where facts are in dispute. In the
event, we overrule the fourth sub-issue as a preliminary objection.
18. The remaining three sub-issues of the first issue; the second; the fourth and fifth
grounds of appeal are essentially grounds of complaint against the Court’s assumption
392
of jurisdiction in the Reference. The issue of jurisdiction of the Court to entertain
the Reference was squarely put before the court below. It was one of the three
issues agreed upon to be resolved as preliminary objections. The requirement that
jurisdiction be established as a threshold matter is very basic. Without jurisdiction,
the court cannot proceed at all. The determination of doubts about jurisdiction must
precede the determination of the merits of the Reference. In the case of the Owners
of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited, [1989] KLRI at page 14
Nyarangi, J. A. stated thus –
“Jurisdiction is everything. Without it, a court has no power to make one more step.
Where a court has no jurisdiction, there would be no basis for a continuation of the
proceedings pending other evidence. A court of law downs tools in respect of the
matter before it the moment it holds that it is without jurisdiction.”
19. And in the case of Fanuel Mantiri N’gunda v Herman Mantiri Ng’unda and 20 Others
(CAT) Civil Appeal No. 8 of 1995 (unreported) the Court stated as follows –
“The basic question of jurisdiction for any court is basic, it goes to the very root of the
authority of the court to adjudicate upon cases of different nature ... (T)he question
of jurisdiction is so fundamental that courts must as a matter of practice on the face
of it be certain and assured of their jurisdictional position at the commencement of
the trial ... It is risky and unsafe for the court to proceed with the trial of a case on
the assumption that the court has jurisdiction to adjudicate upon the case.”
20. Learned Counsels for both parties with one voice, as it were, correctly submitted that
the court below did not attempt to answer the fundamental issue before it: whether
the Court had jurisdiction to entertain the Reference. The issue of jurisdiction had
to be answered first before proceeding any other issue. Inexplicably, an issue that
was not in law a preliminary objection was taken up to strike out the Reference.
21. The second ground of appeal was to the effect that the court below did not make a
finding on the preliminary objections agreed upon during the scheduling conference.
There is considerable merit in this complaint. The record clearly shows that the
court below dealt only with one sub-issue. Two issues were not touched upon. Even
the fundamental issue of jurisdiction was not discussed at all. Rule 68 (5) of the
Rules of Procedure provide in part as follows –
“68 (5) The judgment of the Court shall contain:
(f) the points for determination;
(g) the decision arrived at;
(h) the reasons for such decision”.
22. The court below, in view of the decision it had reached, did not deem it necessary to
consider and determine the remaining issues. This was in contravention of Rule 68
(5) above. All the issues raised in the Scheduling Conference had to be decided upon
by the court below.
23. The third ground of appeal relates to the joinder of parties in the municipal courts
in Uganda and in this Court. With respect, we have a problem with this ground of
appeal. Does it fall under “ground of law” in Article 35 A of the Treaty? The parties
have disagreed as to who are the parties in the Supreme Court of Uganda. This is a
question of mixed law and fact which cannot be resolved by the Appellate Division
of this Court. The complaint seems to be that the parties in the Supreme Court are
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not the same parties in the Reference before the Court. This is a disputed matter
of fact and the court below did not make a finding. With respect, we the Appellate
Division cannot make findings of fact on appeal.
24. The complaint in the fourth ground of appeal is to the effect that the court below did
not refer to any of the provisions of the Treaty or the Common Market Protocol which
oust the jurisdiction of the Court on the ground that there are similar undecided
cases in the municipal courts. We agree with this complaint. The issue was raised
and argued but, the court below did not consider and determine it.
25. The last ground of appeal challenged three findings of the court below to the effect
that: (1) it will be absurd to have parallel proceedings in two different courts (2)
that a clash of decisions would cause confusion between this Court and the courts
in Uganda and (3) it would result in an execution stalemate. Essentially, this
is a complaint against the only finding of the court below made allegedly, as a
preliminary objection. The court below made a determination on the facts on this
point, considered irrelevant issues, and struck out the Reference. By any stretch of
imagination, this was not a preliminary objection. The issue could not be resolved
without adducing evidence to establish the facts. The cause of action before this
Court is an alleged breach or infringement of the Treaty and not an arbitral award
for breach of contract as in the Uganda courts. There is, therefore, no likelihood of a
conflict or a clash between this Court and the courts of Uganda.
26. Counsel for the 1st Respondent, Mr. Tumusingize, lodged in terms of Rule 92 of
the Rules of Procedure, a Notice of Grounds for Affirming the Decision upon other
grounds than those relied upon in the First Instance Division. These grounds were
–
(i) That the Reference was improperly before the Court as against the First Respondent
as it is not a Partner State or Organ of the Community within the meaning of
Article 30 of the Treaty for the Establishment of the East African Community;
(ii) That the Reference was time barred;
(iii) That the Claimant has no rights under the Protocol on the Establishment of the
East African Community for acts that arose prior to the coming into force of the
Protocol.
27. These issues are essentially the same ones that were raised by the 1st Respondent
as preliminary points of law. Learned Counsels for the parties made very erudite
arguments when presenting their arguments in this appeal. As we stated earlier on
in this judgment, the First Instance Division did not discuss these issues nor did it
make a decision thereon. The Treaty and this Court’s Rules of Procedure do not
give the Appellate Division concurrent jurisdiction with the First Instance Division
below to assume jurisdiction so that this Division takes up the issues and resolve
them on appeal. Hence, we decline the invitation to do so, however attractive. It is
contrary to the spirit of Articles 23 (3) read together with Article 35A of the Treaty.
28. The Appellant sought the following Orders, namely –
1) That the Ruling and Order of the 1st Instance Division of the Court dated the
24.9.2011 be set aside;
2) That this Honourable Court be pleased to dispose of the preliminary points of
law raised by the Respondents in the First Instance Division of the Court;
394
3) That the First Instance Division had jurisdiction to entertain Reference No. 6 of
2010;
4) That Reference No. 6 of 2010 in the First Instance Division of the Court be
reinstated.
29. With respect, our answer to the first prayer is, yes. For the reasons explained in this
judgment, the Ruling of the First Instance Division dated the 24.9.2011 cannot be
allowed to stand. However, we decline the invitation to assume original jurisdiction
and thereby to dispose of the preliminary objections raised by the Respondents. This
is an Appellate Division of the Court operating under the mandate of Article 23 (2)
and (3) and Article 35A of the Treaty. That mandate of the Appellate Division is to
hear and determine appeals from judgments and any Orders from the First Instance
Division of the Court. We are not aware of any provision in the Treaty that confers
concurrent jurisdiction with the First Instance Division. The First Instance Division
did not discuss nor did it make a finding of whether it had jurisdiction to entertain
the Reference. This was a fundamental issue on which the court below had to decide
as a threshold issue.
30. In the result, we allow the appeal with costs. The Ruling and Order of the First
Instance Division dated 24.9.2011 is accordingly set aside, and we do hereby re-
instate Reference No. 6 of 2010. Furthermore we direct the First Instance Division to
specifically determine the merits of the Reference before the Court.
***
East African Court of Justice - Appellate Division
Appeal from the Ruling of the First Instance Division by J. Busingye, PJ; M. S. Arach
Amoko, DPJ; JJ. Mkwawa, J. B. Butasi and I. Lenaola, JJ, given on 29th August, 2011, in
The Attorney General of the United Republic of Tanzania And African Network for
Animal Welfare (ANAW)
Before: H.R. Nsekela, P; E. R. Kayitesi and J. M. Ogoola, JJA

March 15, 2012
Application of Court rules- Fact and Law Jurisdiction- Preliminary Points of law -
Permanent Injunction - The reasons for a judgment - Trans-boundary consultations
- Notice of Motion - Procedural irregularities- Reference- Whether a permanent
injunction could be granted against a Partner State- Whether the First Instance
Division failed to properly weigh the Appellant’s points of law and submissions-
Whether a Notice of Motion or a Reference ought to be filed.
Articles: 5, 8, 23(3), 27, 30, 35A, 39, 111, 112 and 114 of the EAC Treaty – Rules: 21,
24(2), 68(5) of the EACJ Rules of Procedure, 2010
The Respondent filed Reference No. 9 of 2010 in this Court challenging the “action”
of the Government of the United Republic of Tanzania, among others, upgrade,
construct or commission the “Natta-Mugumu-Tabora B – Klein’s gate – Loliondo
road” (also known as the “North Road” or the “Superhighway”) across the Serengeti
National Park. In that Reference the Respondent contended that the Government’s
action was unlawful and infringed the provisions of the EAC Treaty. They sought
a declaration that the Appellants actions were unlawful and infringed provisions of
the Treaty and a permanent injunction restraining the Appellant from carrying out
the construction.
The Appellant opposed the Reference and raised several preliminary objections to
the reference. The First Instance Division overruled the objections and awarded cost
to the Appellant. Thereafter the Appellant lodged this appeal.
Held:
1) The issue of appropriate relief is a function of the court’s powers not of the court’s
jurisdiction. To mix up the two under the one rubric of jurisdiction, was to invite
unnecessary and uncalled for difficulties. The substantive jurisdictional issue
was shrouded and completely covered up under the impermeable veil of groping
in the thick mist of whether or not to grant an interim, let alone a permanent,
injunction. Relief can only be granted after the trial, when the Parties have adduced
evidence, witnesses (if any) have been examined, cross-examined, and judgment has
396
been entered for the Party praying the particular relief. The issue concerning the
appropriate relief as contested before the First Instance Division was premature. It
should not have been treated as a preliminary objection at all. It was incapable of
disposing of the Reference – since it should have been dealt with at the end, and not
at the commencement, of the trial. An objection whose disposal requires proving or
disproving of facts or evidence, ceases to be a preliminary point of law.
2) The Ruling dated 29 August 2011, did not specifically apportion any weightings to
the various averments, contentions and submissions of the respective. However,
while the Appellant may be genuinely aggrieved, the issue now before this Appellate
Division could not be a proper appeal as only questions of law, jurisdiction or
procedural irregularity may be appealed to the Appellate Division. Questions of fact
are not appealable. The Appellate Division has no role to entertain grounds of appeal
whose import is one of fact – namely, whether the Court below accorded weight to
the Appellant’s submissions. To do so would be to arrogate unto itself a role which
is by the Treaty, expressly allotted to the First Instance Division. In omitting to
provide the reasons for their Ruling on jurisdiction, the First Instance Division failed
to fulfill the requirements of Rule 68 (5).
3) The Court Rules in question are an unfortunate source for confusion and pitfalls. On
their face, the Rules require all matters filed before the Court, presumably including
references, to be instituted through “application” by way of “notice of motion.
Therein lies the germ of confusion. The Court is not prepared to visit the sins of
the inelegant drafting of its own Rules on the hapless heads of the lawyers or on
the Parties finding that the documentation presented to the First Instance Division
contained all the substantive contents of a Reference as required under Rule 24 (2)
of the EACJ Court Rules. The mix up in this case, arose from the interpretation and
application or implementation of the provisions of the Court’s Rules. The matter
raised no point of law; nor did it manifest any procedural irregularity.
Cases cited:
Attorney General of Kenya v Independent Medical Legal Unit EACJ, Appeal No. 1 of
2011
Fanuel Mantiri Ng’unda v Herman Ng’unda, Court of Appeal Tanzania, Civil Appeal
No. 8 of 1995 (unreported).
James Katabazi & 21 Others v EAC Secretary General and the Attorney General of
Uganda, EACJ Reference No. 1 of 2007
Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR1 at 14
Prof. Peter Anyang’ Nyong’o & 10 Others v Attorney General of Kenya & 5 Others),
EACJ Reference No.1 of 2006
Judgment
Factual Background
1. The facts giving rise to this appeal, can be put quite simply. In sum, the Respondent:
Africa Network for Animal Welfare (“ANAW” who was the Applicant in Reference
No. 9 of 2010), filed that Reference in this Court challenging the “action” of the
AG United Republic of Tanzania v African Network for Animal Welfare
397
Government of the United Republic of Tanzania (the “Government”) to, among

others, upgrade, construct or commission the “Natta-Mugumu-Tabora B – Klein’s
gate – Loliondo road” (also known as the “North Road” or the “Superhighway”)
across the Serengeti National Park. The “Reference” was filed by way of a “Notice of
Motion”, supported by an affidavit. In that Reference (or Notice of Motion), ANAW
contended that the Government’s action was unlawful and infringed the provisions
of the EAC Treaty (the “Treaty”). Accordingly, ANAW prayed the Court:
i. to declare that the impugned action is “unlawful and infringes” the provisions of
the Treaty; and
ii. to issue a permanent injunction restraining the United Republic of Tanzania
from carrying out that action.
2. The Government, through its Attorney General the (“Attorney-General”), opposed
the Reference. It raised the following six “preliminary” objections which, it argued,
were dispositive of the entire dispute – namely, that :
i). the Application is time-barred;
ii). the Notice of Motion is bad in law for want of proper and specific enabling law;
iii). the Application is ambiguous, scandalous, frivolous and vexatious for being
neither a Reference, nor a Notice of Motion;
iv). the affidavit supporting the Notice of Motion, is totally defective;
v). the Court has no jurisdiction to determine and grant the reliefs sought; and
vi). the Application is bad in law for merging two different applications in one.
3. The First Instance Division of this Court considered all the above “preliminary”
objections; and, in paragraphs 35 and 36 of their Ruling of 29 August, 2011, came
to the following conclusions – namely:
“35. In sum, we find and hold that:
1. This Court has jurisdiction to handle this matter and to grant orders such as those
sought by the Appellant.
2. The Reference is not time-barred.
3. The Reference, as drawn, is properly before the Court.
4. The issue of affidavits does not arise at this stage.
The Preliminary Objection is consequently overruled, in its entirety, with costs to the
Applicant.”
4. Aggrieved by the above Ruling of the First Instance Division, the Attorney General
lodged an appeal to this Appellate Division against “the whole of the said decision”.
On 24th January, 2012, the Appellate Division of this Court, heard the Attorney-
General’s appeal. At the scheduling conference of the appeal, the following
consolidated grounds of appeal were agreed:-
i). Lack of jurisdiction;
ii). Failure to consider and/or to properly weigh the Appellant’s points of law and
submissions;
iii). Mixed grill, namely: Confusion over whether to file a “Notice of Motion” or a
“Reference”.
This Court will now consider each one of these grounds substantially in the order in
which they have been presented above:
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Jurisdiction
5. In the course of the oral submissions by learned counsel for both parties, in the appeal
before us, it was made abundantly clear from the outset that the Appellant’s grievance
in this particular ground of appeal was a limited one: namely lack of “jurisdiction”
of this Court to grant the relief of a permanent injunction against a Partner State
(the United Republic of Tanzania). In this regard, Counsel for the Appellant readily
conceded that indeed this Court has jurisdiction to entertain a dispute that concerns
environmental issues. To ascertain that concession, the question was put to Counsel
at least three times; and three times Counsel explicitly and unambiguously admitted
the Court’s jurisdiction. Towards the end of his submission, however, Counsel
seemed to recant his concession. However, realizing the grave consequences of
any such recantation, learned Counsel quickly withdrew that line of argument, and
confirmed that:
6. “I am, instead, withdrawing my present position; and reverting to my earlier
concession: that this Court has jurisdiction to entertain a reference that involves
environmental issues”.
7. Be that as it may, the Court cannot and will not depend solely on a party’s concession
to derive jurisdiction for this Court. This is so because it is trite law, that it is not the
Parties to a dispute who confer jurisdiction on a court of law. The Court must itself
derive jurisdiction from its own underlying constitutive law – independently of what
views the parties may or may not hold or espouse. To complicate matters somewhat,
the First Instance Division of this Court, held in its Ruling of 29 August 2011 which
is now challenged under the present appeal (the impugned Ruling) that:
“1. This Court has jurisdiction to handle this matter and to grant the orders such as
those sought by the Applicant.”
8. Notwithstanding, the clarity of the above holding by the Court, however, a close
examination of the impugned Ruling does not disclose the reasons, let alone the
analysis, for the Court’s holding. This was an unfortunate omission, about which the
Appellant complained – and, in our view, quite rightly so. What reasoning there was
in the Court’s Ruling is captured in paragraphs 6 – 21 (both inclusive) of the Ruling.
Of these, paragraphs 6 – 9 recite the opposing contentions of the respective Counsel
for the Appellant and for the Respondent on the issue of “jurisdiction”. Paragraphs
10, 11 and 12 delve into the sub-issue of whether the United Republic of Tanzania
has or has no right to develop its infrastructure within its own borders (it does);
and whether natural and legal persons may sue a Partner State under the Treaty
(they can). Paragraphs 13 – 15 examine whether the impugned act was of a kind
reserved for institutions of a Partner State under the ambit of Article 30 (3) of the
Treaty (it was not). Paragraphs 16 – 19 deal with the sub-issue of whether the EACJ
has “power” to grant the relief of a permanent injunction (it does). And paragraphs
20 and 21 sum up the Court’s overall conclusion and collective holding on all these
issues – namely that the Government action complained of in this Reference is not
the kind reserved to the Partner States under Article 30 (3); and that Article 39 of the
Treaty (on the granting of interim orders), does not bar the Court from granting the
permanent injunction that was sought by the Applicant, ANAW.
9. It is evident from the above analysis that the Court below did not directly and
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effectually address the issue of substantive jurisdiction. Nowhere in the above cited
paragraphs of its Ruling did the Court come out specifically and positively to state
that the EACJ either has or has no jurisdiction to entertain a Reference grounded
in an environment dispute. Instead, the Court confined itself to the ancillary issues
of whether ANAW could as a “natural or legal” person bring this Reference; and
whether or not ANAW’s prayer for a permanent injunction could be granted by
the Court. Only obliquely did the Court get anywhere remotely close to the issue
of substantive jurisdiction – namely, that the Government action complained of
was not of the kind reserved to the Partner States (i.e outside the jurisdiction of the
EACJ). This oblique reference amounted at best, to only an implicit finding of the
Court’s jurisdiction. But even so, it contains not any real emphatic “reasoning” for
the Court’s finding of jurisdiction in this environmental dispute – the first ever such
dispute to come before this Court.
10. That omission was unfortunate. This is so for, at least, two good reasons. First, Rule
68(5) of the EACJ Rules expressly requires the Judgment (including the Rulings) of
this Court to contain “the reasons for the judgment”. That Rule provides as follows:
“(5) The judgment of the Court shall contain:
(a) the date on which it is read,
(b) the names of the judges participating in it,
(c) the names of the parties,
(d) the names of the advocates and agents of the parties,
(e) a concise statement of the facts,
(f) the points for determination,
(g) the decision arrived at,
(h) the reasons for such decision,
(i) the operative part of the judgment, including the decision as to costs”.
11. In omitting to provide the reasons for their Ruling on jurisdiction, the First Instance
Division failed to fulfill the requirements of Rule 68 (5). Second, the importance to
supply the reasons for a court’s judgment is self-evident. In matters of jurisdiction,
a court is under double compulsion to adduce the reasons for its holding: first, to
comply with Rule 68 (5) of our Court Rules; and secondly, to inform the Parties and
the Appellate Division of the basis for the Court’s decision.
12. Jurisdiction is a most, if not the most, fundamental issue that a court faces in any
trial. 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 – for, as NyarangI, JA so aptly opined:
“Without jurisdiction, a court has no power to make one more step. Where a court
has no jurisdiction, there would be no basis for a continuation of proceedings pending
other evidence. A court of law downs its tools in respect of the matter before it the
moment it holds the opinion that it is without jurisdiction” – (see Owners of the
Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR1 at 14).
On the other hand, the converse is equally damning – for: “Where a court takes it
upon itself to exercise a jurisdiction which it does not posses, its decision amounts to
nothing.” – see Words and Phrases Legally Defined – Vol. 3: I – N, page 113.
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13. More subtle, however, but no less devastating is, where a court simply assumes that
it has jurisdiction. Here, too, the authorities are clear:
“It is risky and unsafe for the court to proceed with the trial of a case on the
assumption that the court has jurisdiction to adjudicate upon the case” – see the
Tanzanian case Fanuel Mantiri Ng’unda v Herman Ng’unda (CAT) Civil Appeal No.
8 of 1995 (unreported).
14. In this regard, the Court drew comfort from the Parties’ own pleadings. In their
Reference, the Applicants (ANAW) had adverted to this subject of jurisdiction; and
had gone to great lengths to argue the case for the Court’s jurisdiction. In particular,
the Applicants referred the Court below to a plethora of provisions of the law
(both within and beyond the EAC Treaty) from which the Court should derive its
environmental jurisdiction. Those provisions, which were all expressly pleaded in
the trial before the First Instance Division, are Articles 5 (2) and (3); 8 (1) (c); 111 (1)
(d); 111 (2); 112 (1) and (2); and 114 (1). In their essence, those Articles provide as
follows:
Article 5 (2): The Partner States undertake to strengthen and regulate their
infrastructural, social and other relations, to the end that there shall be harmonious
and balanced development and sustained expansion of economic activities the
benefit of which shall be equitably shared.
Article 5 (3) (c): [the Community is under obligation to ensure] the promotion of
sustainable utilisation of the natural resources of the Partner States and the taking
of measures that would effectively protect the natural environment of the Partner
States.
Article 8 (1) (c) : [in their implementation of the Treaty provisions the Partner States
are under a general undertaking] to abstain from any measures likely to jeopardize
the achievement of the objectives or the implementation of the provisions of the
Treaty.
Article 111 (1) (b): [the Partner States] agree to take concerted measures to foster
co-operation in the joint and efficient management and sustainable utilization of
natural resources within the Community.
Article 111 (1) (d): Partner States are obliged to provide prior and timely notification
and relevant information to each other on natural and human activities that may or
are likely to have significant trans-boundary impacts; and to consult with each other
at an early stage.
Article 111 (2): prescribes as Community objectives the several requirements
stipulated in paragraphs (a), (b) and (c) – namely:
(a) to contribute towards the sustainability of the environment;
(b) to ensure sustainable utilisation of natural resources like terrestrial ecosystems;
and
(c) to jointly develop and adopt … management policies that ensure sustenance and
preservation of ecosystems.
Article 112 (1): [For purposes of Article 111] the Partner States undertake to adopt,
develop, encourage and promote all the co-operative measures listed in paragraphs
(a) through (n) of Article 112 (2).
Article 114 (1): [For purposes of Article 111] the Partner States agree to take
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concerted measures to foster co-operation in the joint and efficient management and
the sustainable utilisation of natural resources within the Community for the mutual
benefit of the Partner States. In particular, the Partner States shall;
(a) take necessary measures to conserve their natural resources;
(a) co-operate in the management of their natural resources for the conservation of
the ecosystems and the arrest of environmental degradation.
15. From this long catalogue of Treaty provisions, it is more than abundantly clear
that the Partner States have bound themselves to observe a variety of express
undertakings and obligations, concerning the promotion, preservation, conservation
and protection of the environment. The scope and import of the environmental
obligations voluntarily and freely undertaken by the Partner States under the Treaty,
is broad and all-encompassing. The purpose of these Treaty provisions cannot
and must not be allowed to be undermined by a narrow or restrictive reading of
those provisions. Rather the provisions must be given a purposive interpretation,
construction, application and implementation. Such is the essence of the Vienna
Convention on the Interpretation of Treaties.
16. In the instant case, the Treaty obligations of the Partner States are to be examined
and ascertained even more emphatically by reason of the nature, size and location
of the proposed Superhighway Project – whose implications would loom large
on the environmental landscape; and whose impact would immediately, directly,
and substantially affect the interests of a neighboring Partner State (the Republic
of Kenya: Masai Maara National Park) and, indeed, also the interests of the entire
international community (through UNESCO’s designation of the Serengeti National
Park as a World Heritage). In this connection, it is not known whether or not the
obligation in Article 111 (1) (d) of the Treaty (on trans-boundary consultations),
was strictly observed between the United Republic of Tanzania and the Republic of
Kenya concerning the proposed construction of the Serengeti Superhighway. For
purposes of the Reference, however, the significant point is that this Article of the
Treaty clearly and emphatically brings these kinds of actions of Partner States into
the purview of the EACJ jurisdiction.
17. It is quite evident that all the above provisions impose on the Partner States of the EA
Community one obligation or another; one duty or another; and one undertaking
or another with regard to their mutual co-operation in the environmental field.
The Applicant’s position was simply this: Let the Court, which is the guardian of
the Treaty, interpret these various Articles; apply them, and establish whether the
Partner State in question here (namely, the United Republic of Tanzania) has or has
not complied with its Treaty obligations under each and everyone of those Treaty
provisions.
18. It is beyond gainsaying that the Applicant’s prayer here amounts to no more than
asking this Court to exercise its undoubted jurisdiction under Article 27 (1) of the
Treaty: to interpret and apply the Treaty; and equally, the Court’s indispensable
mandate under Article 23 (1): to ensure compliance with the provisions of the
Treaty. Needless to say, the Court’s power under Article 27(1) to interpret the Treaty
traverses the entire territory of the Treaty – it covers interpretation not only of the
substantive Articles of the Treaty, but also of the objectives, principles, Annexes,
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Protocols, Rules, Regulations , Directives and Decisions attaching to or otherwise
emanating from the Treaty.
19. Now, whether or not the United Republic of Tanzania has infringed those provisions
– or any of them, is precisely what the present Reference seeks to establish. However,
for purposes of ascertaining whether or not this Court has jurisdiction, it is not
necessary to establish at this stage the alleged infringement, unlawfulness or illegality
on the part of the United Republic of Tanzania. That was the cause of action before
the First Instance Division. That is a matter for substantive trial – wherein the
20. Parties will adduce the requisite evidence and testimony, produce all witnesses (if
and as needed), engage in examination and cross-examination, make submissions
(whether written or oral or both), etc. On the other hand, at this preliminary stage,
however, all that is required is for the Court to make the legal nexus between the
Applicant’s allegations and the existence of positive provisions in the Treaty, and
elsewhere, that impose on the Partner States an obligation, a duty, or an undertaking
that binds the Partner States to do or to withhold from doing or engaging in certain
acts; or to observe certain standards or behavior in the area of environmental
protection, conservation, and management.
21. Looked at from this stand-point, it is immensely evident that this Court has
jurisdiction under Articles 5(2), 5(3), 8 (1) (c), 111 (1) (d), 111 (2), 112 (1), and 114
(1) (a) and (b) to entertain environmental disputes that are brought before it. This
is so, notwithstanding the reservation in Article 30 (3) of the EAC Treaty; which
provides for an exception to the Court’s jurisdiction – namely:
“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”.
22. There is no provision at all under the Treaty which reserves environmental
jurisdiction to the Partner States, or any of them or their institutions. In this regard,
it is noteworthy that certain reservations to the Court’s jurisdiction have been
expressly stipulated in Articles 24 (1), 41 (2) and Annex IX of the EAC Customs
Union Protocol, as well as in Article 50 (2) of the EA Common Market Protocol –
through creation of parallel mechanisms for dispute resolution which aim to exclude
this Court’s jurisdiction. As far as we are able to ascertain, none of these reservations
encompasses the environmental arena of the Treaty, to exempt from this Court’s
jurisdiction the obligations of the Partner States in that area. Accordingly, we have
no hesitation at all to find and to hold that the many provisions of the EAC Treaty
cited above do, singly and collectively, confer jurisdiction on the EACJ to entertain
disputes involving the environmental obligations and undertakings of the EAC
Partner States.
23. Indeed, these Treaty provisions do not only prescribe the Partner States’ obligations,
they themselves (read together with the provisions of Articles 28, 29 and 30 of the
Treaty) do, in effect, constitute the cause of action – with the consequence that a
claimant or an aggrieved party does not have to demonstrate a personal tort, right,
infringement, injury or damage specific to himself in order to refer the matter to
this Court for adjudication. The mere fact of the Treaty breach, is itself the cause
of action – see this Court’s holding in Prof. Peter Anyang’ Nyong’o & 10 Others v
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Attorney General of Kenya & 5 Others), Reference No.1 of 2006 Judgment of 30th
March 2007) on special causes of action created by the EAC Treaty.
24. In James Katabazi & 21 Others v EAC Secretary General and the Attorney General of
Uganda (Reference No. 1 of 2007: Judgment of 1st November, 2007), this Court had
occasion to apply elements of the doctrine of a special cause of action under the EAC
Treaty. In that case, the cause of action in the matter before the Ugandan courts was
contravention of the provisions of the Constitution of Uganda (regarding prevention
by the Army of decisions of the High Court and the Constitutional Court). Before
the EACJ, however, the cause of action was totally different – namely, violation (by
the Partner State) of the principles of the Rule of Law and of Good Governance
enshrined in, inter alia Articles 5, 6, 7 and 8 of the EAC Treaty; and, therefore, an
In the premises, the first ground of appeal fails – to the extent (if any) that it sought
to challenge the jurisdiction of this Court to entertain this Reference.
Permanent Injunction
25. As regards the ancillary features of “jurisdiction”, the Appellant went to extraordinary,
if not extreme, lengths to argue that the Court below had no “jurisdiction” (as counsel
put it) to grant the reliefs prayed – and, in particular, the relief of a permanent
injunction. While the Appellant’s lead counsel characterized this as “jurisdiction”,
it would be more correct to call it the “power” to grant the challenged relief. This
would be for a number of reasons. The granting or withholding of a relief - any relief
prayed by a Party to a dispute – is not a function of the court’s jurisdiction. Rather,
it is a consequence of a court’s holding or finding in a dispute in favour of that Party.
26. Jurisdiction being central and crucial to the authority of a court to entertain the
dispute at all, is ordinarily pleaded upfront, at the commencement of the hearing or
proceedings. The granting of a relief, on the other hand, always follows the substantive
holding of the court, after the Parties have canvassed their respective sides of the
case, on its merits. The relief, redress, remedy, restitution or sanction, as the case
may be, is a culmination of the court’s holding or judgment: the consequence of the
courts’ assessment and evaluation of the merits of the case. There is no way the court
can grant a relief unless and until it has first established or otherwise ascertained its
jurisdiction in the matter.
27. Accordingly, the issue of appropriate reliefs is a function not of the court’s
“jurisdiction”, but of the court’s “powers”. To mix up the two under the one rubric
of jurisdiction, as was evident in this case, was to invite unnecessary and uncalled
for difficulties. In the instant case, this mix up led to the Appellant’s submissions on
jurisdiction, when in truth the submission was limited to the power of the Court to
grant or not to grant various reliefs. This in turn led the Court to treat the issue as a
preliminary objection and to deal with it up front – when the issue was, in truth, best
suited for dealing with at the end of the trial, in the context of the merits of the case;
and, only if, the Applicants were found to have won their claim under the Reference.
Worse still, as the matter was dealt with as a jurisdictional one, it led to a finding
of jurisdiction for the Court, but without the necessary reasoning and analysis of
how and why the Court had jurisdiction. The substantive jurisdictional issue was
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shrouded and completely covered up under the impermeable veil of groping in the
thick mist of whether or not to grant an interim, let alone a permanent, injunction.
28. In light of all these, this Court is of the considered view that this ground of appeal
before us is premature. All that the Court below held in its Ruling of 29 th August,
2011, was that it had power to grant the reliefs – including grant of a permanent
injunction – as prayed in the Applicant’s Reference. Nowhere was it shown, or even
contended that the First Instance Division went beyond the step of holding that it
has the power. Certainly the Court did not grant any interim injunction – let alone a
permanent injunction or, indeed, any other relief for that matter. There was no way,
in any event, that the Court would have granted any such relief at that stage, when all
it was doing was considering preliminary points of law. As we have explained above,
relief can be granted only after the trial, when the Parties have adduced evidence,
witnesses (if any) have been examined, cross-examined, and judgment has been
entered for the Party praying the particular relief.
29. It is evident then that all that was before us was at best, the Party’s own anticipation
and, at worst, the Party’s own speculation if not imagination, that the Court might
grant the feared permanent injunction. To that extent, this ground of appeal was
intrinsically speculative; and, therefore, premature before this Court. For this Court
to canvass that ground, as now prayed, would be to deal in the purely academic, the
abstract, the conjectural and the theoretical. It is quite clear that the issue concerning
the appropriate relief as contested before the First Instance Division, was equally
premature. Indeed, it should not have been treated as a preliminary objection at
all. It was incapable of disposing of the Reference – since it should have been dealt
with at the end, and not at the commencement, of the trial. And, in any event,
calling for the weighing, appreciation and ascertainment of facts and evidence (as it
did), this objection was not a proper preliminary point of pure law. An objection
whose disposal requires proving or disproving of facts or evidence, ceases to be a
preliminary point of law. Accordingly this Court, declines to go into the substantive
merits of this particular ground of appeal.
30. Before taking leave of this particular aspect of this ground of appeal, we are
constrained to make an important and critical observation concerning the trial
Court’s treatment of what the Parties framed as preliminary points of law. It is quite
clear in this Reference that the First Instance Division had before it up to six issues to
determine – namely (i) time-bar, (ii) want of enabling provisions, (iii) ambiguous,
scandalous, frivolous and vexatious suit (iv) defective affidavit (v) “jurisdiction” to
grant a permanent injunction, and (vi) the “mixed grill” issue. A careful look at all
these issues and the manner and extent to which the Court’s ruling dealt with each
one of them, reveals that only one or two (out of the six) was truly a Preliminary
Point – in the sense of being a pure point of law, whose determination could dispose
of the entire Reference. Chief among such Preliminary Points was the jurisdictional
issue, albeit limited to the “power” of the Court to grant the relief of a permanent
injunction against a Partner State.
31. All the other so-called Preliminary Points were not at all Preliminary Points of law.
Each and everyone of them involved the clash of facts, the production of evidence,
and the assessment of testimony. Any such issue (depicting those features) cannot
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and should not be treated as a Preliminary Point. Rather, it becomes a matter of

substantive adjudication of the litigation on its merits – with evidence adduced, facts
shifted, testimony weighed, witnesses called, examined and cross-examined; and a
finding of fact then made by the Court. On the proper treatment of preliminary
objections in this Court, we have articulated our views at length in our judgment of
today’s date in the parallel case of Attorney General of Kenya v Independent Medical
Legal Unit EACJ, Appeal No. 1 of 2011 (from Reference No. 3 of 2010). “Mixed grill”
Issue
32. The Appellant made a spirited argument concerning the formal propriety of the
correct filing of the matter before the First Instance Division. Was it a “Reference”,
brought under Rule 24 of this Court’s Rules of Procedure; or a “Notice of Motion”
filed under Rule 21 of those Court Rules? The importance of that question lies in the
legal consequences attaching to either Rule. A Reference under Rule 24 requires no
supporting affidavit; but needs to show and to present the various detailed substantive
contents specified in that Rule. A Notice of Motion, on the other hand, requires
a supporting affidavit, but does not need to specify any substantive information
concerning the particulars of the complaint. Secondly, and even more importantly
(for the purposes of this present case), a Reference requires the Respondent to make
a reasoned Response in defence; while a Notice of Motion could be answered by a
counter-affidavit (as indeed the Appellant, in this case, was led to do).
33. In response to the Appellant’s above submissions, the Respondent underscored
four points: First, the documentation filed in this case, contained all the relevant
underlying provisions of the law for a defence. Indeed, it expressly carried the
word “Reference” in its title. Second, that indeed the body of the documentation
did contain all the contents required for a Reference under Rule 24 (2) – namely:
the particulars (name, identity, address, residence) of the Applicant and of the
Respondent, the subject matter of the Reference, a summary of the law; the nature of
the supporting evidence, and the orders sought.
34. Third, that the word “Notice of Motion” crept onto the face of the documentation
accidentally and unintentionally; as, indeed, was the addition of a supporting affidavit
(which in this case was mere surplassage). While all this made for some confusion,
the Respondent contended that the Respondent (now Appellant) was not caused any
substantive prejudice or injustice.
35. Fourth, the Respondent urged this Court to consider that the mix up in the
nomenclature in this case arose from the mix-up inherent in the two sets of Rules
themselves. Rule 24 (1) states that a Reference under that Rule is instituted by
presenting to the Court “an application”. The word “application” is not defined or
referred to anywhere in the Rules, except in Rule 21, in which it is stipulated that: “all
applications to the First Instance Division shall be by notice of motion; which shall
state the grounds of the application”.
36. This Court agrees with the Respondent. The Court Rules in question are, indeed,
an unfortunate source for confusion and pitfalls. On their face, the Rules require all
matters filed before the Court (presumably including references, such as the instant
Reference) to be instituted through “application” by way of “notice of motion”.
Therein lies the germ of confusion – especially for the unwary or the uninitiated
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litigant and/or their lawyer. The devil is in the drafting. To that extent, the Court is
not prepared to visit the sins of the inelegant drafting of its own Rules on the hapless
heads of the lawyers, let alone of the Parties themselves. We are alive to the fact that
the Court’s practice is still embryonic at this early stage of the Court’s operations.
There is still room for that practice to take root and to bloom among the practising
lawyers; and for the Court itself to revisit its own Rules with a view to streamlining
the potential pitfalls of practice.
37. Moreover, the documentation that was presented to the First Instance Division
contained all the hallmarks of a Reference instituted under both Rule 24 of this
Court’s Rules of Procedure, and Articles 23, 27, 30 and 39 of the EAC Treaty; as well
as under “all other enabling provisions of the law”. It carried the word “Reference”
in its title; and, even more significantly, it contained all the substantive contents of a
Reference as required under Rule 24 (2) of the EACJ Court Rules. In matters of this
kind, one of the critical dispositive points to consider is whether the “irregularity” (if
that is what the mix-up was), caused the Party (the then Respondent) to suffer any
significant prejudice, hardship or injustice. There was none. All that the Respondent
(now the Appellant) contended, was that he was misled by this documentation in
making a response by way of a counter- affidavit, instead of a fully fledged Response.
38. That may well be – but we are of the view that the “irregularity” in contention here
was not a fatal one. It was one that could have been cured upon application and
ample explanation to the Court below. Indeed, it is not too late for the Appellant
to do just that. We are fortified in this view by the Respondents learned Counsel’s
own affirmation on this issue – namely, that the Respondent is ready, even now,
to accommodate any such request for appropriate amendment of pleadings by the
Appellant. This Court is, therefore, prepared to remit the matter to the First Instance
Division for substantive trial of the merits of the Reference – and the opportunity to
rectify, as appropriate, any irregularities lurking in the pleadings of the Parties.
39. One last word on this aspect of the appeal. The Appellant contended that this mix-up
in the Applicant’s pleadings constituted a “procedural irregularity” fit for an appeal
under Article 35A of the Treaty (and Rule 77 of the Court Rules). While the mix-
up could have been “irregular”, it is debatable whether it did and could amount to a
“procedural” irregularity. This is because, procedural irregularities are in character,
irregularities that attach to the conduct of a proceeding or trial. It comprises such
irregularities as the inadmissibility of documents or witnesses, denying a party the
opportunity to be present or to be heard at all, hearing a matter in camera (where it
should be heard in public and vice versa), failure to notify or serve in time or at all,
etc. In this regard, “procedure” is defined in Black’s Law Dictionary (9th Edn. at p.
1324) as:
“the regular and orderly progression of a lawsuit, including all acts and events
between the time of commencement and the entry of judgment.”
Clearly, the emphasis in the above definition is on “regularity” and “orderlines” of
the judicial progression of the process – “irregularity” being a departure or variation
from the normal conduct of action (Black’s Law Dictionary supra, at p. 906).
40. In short, procedural irregularities attach to a denial or failure of due process (i.e.
fairness) of a proceeding or hearing. It seeks to ensure orderly, fair, equitable,
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balanced, transparent, honest and just progress in the conduct of the steps
encompassed in carrying out juridical proceedings – from commencement of the
action, to delivery (and execution) of judgment. The mix up in this case, on the
other hand, arises from the interpretation and application or implementation of the
provisions of the Court’s Rules. We were prepared to entertain this aspect of the
appeal in the event that it raised substantive points of law under Article 35A (a) of
the EAC Treaty, or in as far as it amounted to a procedural irregularity under the
ambit of paragraph (c) of that same Article. As it turned out, however, we find that
the matter raised no point of law; nor did it manifest any “procedural irregularity”,
properly so called.
Accordingly, that ground of appeal too must fail.
Weighting of the Law and Counsel’s Submissions
41. The Appellant’s last ground of appeal was to the effect that:
“2. That, the Court of the First Instance erred in law in according no legal weight to
the submissions and precedents submitted by the Respondent/Appellant” .
42. In his oral submission before this Appellate Division, learned Counsel for the
Appellant explained that notwithstanding his submission in the First Instance
Division concerning the interpretation and application of Article 23 (1) – read
with Article 39 – of the EAC Treaty, the First Instance Division did not apportion
weight to his submissions. This may well have been the case. The Ruling of that
Division dated 29 August 2011, does not specifically apportion any weightings to the
various averments, contentions and submissions of the respective Counsel – and
neither does the Court record of the proceedings of that Division dated 29 July 2011.
That being the case, however, it is clear that while the Appellant may be genuinely
aggrieved, the issue now before this Appellate Division cannot be a proper appeal. As
a general rule, the Court has no mathematical formula for apportioning its weighting
in these kinds of judicial considerations. More specifically, however, there are two
other considerations of substantive import.
43. First, Article 23 (3) confers on the First Instance Division original jurisdiction to
entertain matters brought before this Court. That Article states that:-
“ 23 (3). The First Instance Division shall have jurisdiction to hear and determine,
at first instance, subject to a right of appeal to the Appellate Division under Article
35A, any matter before the Court in accordance with this Treaty”.
44. Second, it is important to recall the architecture of the Treaty – particularly so after
the August 2007 Amendment of the Treaty. Both Article 23 (3) and Article 35A are
creatures of that Amendment. Article 35A provides as follows:
“35A. An appeal from the judgment or any order of the First Instance Division of the
Court shall lie to the Appellate Division on –
(a) points of law;
(b) grounds of lack of jurisdiction; or
45. The intention of the Amendment (which the above two provisions of the Treaty set
out to implement) was to transform the EACJ from a one- chamber court (whose
judgments and decisions were final), into a two-chamber court, with one chamber
exercising original jurisdiction, and the other exercising appellate jurisdiction.
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Article 23(3) confers on the First Instance Division all the original jurisdiction of the
Court. Article 35A, on the other hand, delienates, in a limited and restricted fashion,
the scope, nature and extent of the appeals that may be brought to the Appellate
Division. The great divide here is essentially one of law versus facts.
46. Only questions of law, jurisdiction or procedural irregularity may be appealed to
the Appellate Division. Questions of fact are exclusively and conclusively decided
at the level of the First Instance Division. They are not appealable to the Appellate
Division. Evaluation and assessment of questions of fact before the First Instance
Division are to be determined by the First Instance Division exhaustively and with
finality – without appeal to the Appellate Division. In their wisdom, the framers of
the EAC Treaty saw it fit to allocate these respective roles to the two Divisions of the
Court. In matters of fact, the two Divisions do not have concurrent jurisdiction. In
view of this clear demarcation of juridical space, therefore, we find that in this instant
Reference, the Appellate Division has no role to entertain the Appellant’s last ground
of appeal whose import is one of fact – namely, whether the Court below accorded
weight to the Appellant’s submissions. For the Appellate Division to do so, would be
to purport to stand in the shoes of the First Instance Division to hear the matter at its
level of original jurisdiction and, indeed, to arrogate unto itself a role which is, by the
clear provisions of the Treaty, expressly allotted to the trial Division of this Court.
47. In the result, we dismiss all the grounds of the appeal. However, as all these grounds
were appeals against preliminary objections raised in the Court below, we order that
the matter be, and is hereby, remitted to the First Instance Division for substantive
trial and adjudication of the Reference on its merits.
It is so ordered.
****
Appeal No.4 of 2011
Arising from a Ruling of the First Instance Division in Reference No.2 of 2010, before:
J Busingye, P.J; Mary Stella Arach-Amoko, DPJ and John Mkwawa, J, 29th September
2011
Emmanuel Mwakisha Mjawasi and 748 others And The Attorney General of the
Republic of Kenya
Before: H. R. Nsekela P; P. K. Tunoi VP; E. R. Kayitesi, L. Nzosaba and J. M. Ogoola, JJA

April 27, 2012
Jurisdiction in national courts- Procedural irregularity- Res judicata-Non retrospective

application of the EAC Treaty - The Preamble to the EAC Treaty- Former employees
of the defunct East African Community –Whether there was procedural irregularity
and the Appellants were not afforded an opportunity to present their submissions.
Article 6(d) and 7(2) of the EAC Treaty - The East African Community Mediation
Agreement, 1984- Article 31 of the Vienna Convention –
The Appellants are Kenyan citizens and former employees of the defunct East
African Community (EAC) that collapsed in 1977. Subsequent to the dissolution
of the defunct EAC in 1977, the Partner States executed a Mediation Agreement on
14 May, 1984, for the division of the assets and liabilities of the defunct Community.
Under that Mediation Agreement, each Partner State undertook the responsibility
to pay out of its share of the defunct Community’s assets, the pensions and other
terminal benefits of its respective nationals who had been employed by the EAC
and its institutions prior to the division date of the assets. The division dates were
different for each of the existing institutions and the latest such division date was
30th June 1977.
The appellants claimed that though they were absorbed into the Kenyan Public
Service and other State agencies and were eventually paid their terminal dues by
those organizations, they were not paid their corresponding dues for the services
they rendered to the East African Community; yet they lost their employment at the
EAC pursuant to the abolition of their offices.
The Appellants, who had previously instituted two suits in the High Court of Kenya,
averred that they are entitled to be paid by the Respondent their EAC terminal
benefits in accordance with their individual records for the services they rendered to
the defunct East African Community before the division date.
The Appellants filed Reference No.2 of 2010, before the First Instance Division
claiming that the Respondent’s refusal, neglect or failure to pay the Applicants their
410
EAC terminal benefits constituted a breach of Article 6(d) and Article 7(2) of the
EAC Treaty.
The Respondent raised several preliminary objections and upon hearing, on 29th
September, 201, the First Instance Division ruled that it had no jurisdiction to hear
the Reference on account of none retrospective application of the Treaty. Aggrieved
by the decision, the Appellants lodged this appeal. The Respondent posited that the
instant Reference did not deal with the interpretation nor the application of the
Treaty.
Held:
1). Kenya’s former Community employees had a genuine and legitimate basis for
their grievance of injustice against the Kenyan State concerning their Community
pensions. Nonetheless, the jurisdiction for interrogating the merits (or demerits)
of Appellants’ grievance properly lay with the national Courts and allied fora on
account of the non retrospective application of the new EAC Treaty of 2000.
2). The objection of non retroactivity of a Treaty is a fundamental issue that goes to the
root of the case. Retroactivity is eminently a point of pure law which this Court is not
only entitled to raise on its own motion, but also to entertain as a point of objection
that is capable of disposing of the entire case. The instant case meets the necessary
conditions for the principle of non retroactivity to be applied. The EAC Treaty is non
retroactive. So the Treaty does not apply to the present Reference. Consequently,
the East African Court of Justice is not clothed with the jurisdiction to entertain the
Reference.
3). The Mediation Agreement of 1984 effectively and definitively moved the management
of the assets and liabilities of the defunct Community from the remit of the East
African Community, to the realm of the various National States.
Cases cited:
Attorney General of the United Republic of the Tanzania v. African Network for Animal
Welfare, EACJ Appeal No.3 of 2011
Brazil – Measures Affecting Desiccated Coconut, AB 1996 – 4, WTO Report of the
Appellate Body, 15
Mavrommatis Palestine Concessions (Greece v U. K.), 1924, P.C.I.J., (SER. B) No.3
The Ambatielos case (jurisdiction), judgment of July 1st 1952; I.C.J. reports 1952
Judgment
Introduction
1. This is an appeal by Emmanuel Mwakisha Mjawasi and 748 others (“the Appellants”),
represented by Mr. Mutembei of Gichuru & Co., Advocates, against the Ruling of the
First Instance Division of the Court in Reference No.2 of 2010.
2. The Respondent is the Republic of Kenya, represented by the Honourable Attorney
General of the Republic of Kenya.
Emmanuel Mjawasi and others v AG Kenya
411
Background to the Case

3. The Appellants are Kenyan citizens and former employees of the defunct East
African Community (EAC) that collapsed in 1977. Subsequent to the dissolution
of the defunct EAC in 1977, the Partner States executed a Mediation Agreement on
14 May, 1984, for the division of the assets and liabilities of the defunct Community.
Under that Mediation Agreement, each Partner State undertook the responsibility
to pay out of its share of the defunct Community’s assets, the pensions and other
terminal benefits of its respective nationals who had been employed by the EAC
and its institutions prior to the division date of the assets. The division dates were
different for each of the existing institutions as indicated in article 1 (i) of the
Mediation Agreement. However, the latest such division date was 30 June 1977.
4. Article 10.05 of the Mediation Agreement provided as follows: “Each State shall:
(a) Pay its nationals employed by Corporations or GFS and retired from active
services by the division date the pensions and other benefits due to them on
account of such employment.
(b) Make provision for the pension rights and entitlement to other benefit accrued
as of the division date in favour of its nationals in active service with such
Corporations or GFS at that date.”
5. Interestingly, the Kenyan Government devised a somewhat novel way of dealing
with the situation which arose as the consequence of the Mediation Agreement. In
this regard, the ex-employees who were still in active service on the division date
were given the option to take their EAC pension directly; or to join the Kenyan
Public Service, including its Parastatals and State corporations. Through this latter
option, many ex-employees of the defunct EAC were absorbed into the employ of
the Kenyan Public Service. Conversely, those who took the option to retire were paid
at once all their benefits, including additional pensions on the basis that their offices
had been abolished in the EAC.
6. It was the Appellants’ case before us and in the Court below that even though they
were absorbed into the Kenyan Public Service and other State agencies and were
eventually paid their terminal dues by those organizations, they have not, however,
been paid their corresponding dues for the services they rendered to the East African
Community; yet they lost their employment at the EAC pursuant to the abolition of
their offices.
7. The Appellants, therefore, averred that they are entitled to be paid by the Kenyan
Government their EAC terminal benefits in accordance with their individual records
for the services they rendered to the defunct East African Community before the
division date -- including their pensions, additional pensions, provident fund,
severance allowances, gratuity, redundancy, payment in lieu of notice, repatriation
expenses, loss of office, benefits outstanding, accumulated leave, salary in lieu of
notice, real value and compound interest until full payment.
8. It is common knowledge that the Appellants instituted two suits in the High Court
of Kenya, which were later consolidated. The Appellants later petitioned the Kenya
National Assembly, but also, in vain. It is on the basis of this background that the
Appellants filed the Reference No.2 of 2010, before the First Instance Division of the
East African Court of Justice (EACJ).
412
The Reference
9. It is to be recalled that in their Reference in the Court below, the Applicants (now
Appellants) had prayed for declarations that the Respondent’s refusal, neglect and/
or failure to pay the Applicants their EAC terminal benefits constitutes a breach of
Article 6(d) and Article 7(2) of the EAC Treaty.
10. They also prayed for an order to compel the Respondent to pay their EAC terminal
benefits including, but not limited to, one month’s salary in lieu of notice, loss of
office benefits, pension emoluments, outstanding/accumulated leave, repatriation
expenses, real value and 7% compound interest until payment in full.
Respondent’s Response
11. The Respondent opposed the Reference in the Court below. He raised the following
objections which were agreed as issues by both parties during the Scheduling
Conference, namely:
i. The Court lacks the jurisdiction to hear and determine the Reference;
ii. The matter is res judicata;
iii. The Reference is inadmissible in this Court since local remedies have not been
exhausted.
12. Subsequently, however, the Respondent unilaterally added the following issues in
the Respondent’s written submissions after the hearing:
(1) The East African Community Treaty of 2000 cannot be applied retroactively;
(2) The Claimants’ statements are mere allegations without any proof of how the
Treaty or the various Conventions listed therein have been infringed by the
Respondent or that the Respondent is a signatory to them;
(3) The objectives of the Treaty under its Article 5 do not provide for the redress of
previous injustices, if any, to entitle the Claimants to rely on Articles 6 and 7 of
the EAC Treaty.
Ruling of the First Instance Division

13. The First Instance Division considered all the above six preliminary objections,
including those which had not been agreed upon by the Parties at the Scheduling
Conference, and concluded with the decision that:
(1) The Court has jurisdiction to hear the Reference;
(2)The Reference is not barred by the doctrine of res judicatan or by the rule of
exhaustion of local remedies;
(3) The Court cannot entertain the Reference on account of no retrospective
application of the Treaty;
(4) The Reference is accordingly struck out with costs to the Respondent.
The Grounds of Appeal

14. Aggrieved by the above decision of the First Instance Division, the Appellants
lodged an appeal to this Appellate Division based on 8 grounds; but at its Scheduling
Conference held on 16 March, 2012, this Appellate Division agreed with the Parties
to reduce the grounds of appeal from eight to only three, namely:
413
(1) Whether the learned Judges of the First Instance Division erred in law in finding
that the East African Community did not have retroactive application in respect
of the present case;
(2) Whether the learned Judges of the First Instance Division erred in law when they
made findings of fact with finality at the preliminary stage without a full trial;
(3) Whether there was procedural irregularity in entertaining and determining the
issue of retroactivity with finality without affording the Appellants notice for and
an opportunity to present their submissions.
Ground 1: Whether the EAC Treaty has retroactive application for the instant case?
15. On this point, the Court below made the following finding:
“it is clear that the Claimants became aware of the acts/omissions of the Respondent
complained of by 1998, when they filed the suit in the Kenya High Court. That was
well before the Treaty entered into force in 2000. There is no contrary intention
from the reading of the Treaty that it was to apply retrospectively and none has been
established by the Claimants.”
16. That finding was contested by the Appellants with the argument that their case was
within the scope of the EAC Treaty, since the time of their cause of action was not in
the year 1998 as the Court below found. Counsel for the Appellants contended that
the issue of non retroactivity of the EAC Treaty was not relevant to the circumstances
of this case. He added that the Court below did not give the reasons why it chose
the year 1998 as its reference point, in lieu of the years 2004 or 2009. He affirmed
that the issue of non- payment of terminal benefits by the Respondent to the ex-
employees for services they rendered to the defunct Community, was raised in
Kenya’s National Assembly on 5 August, 2009, and that the Respondent admitted
to holding monies for payment to the Appellants and that non-payment was due
to the fact that the beneficiaries could not be found or traced. Learned Counsel
concluded that the admission of debt by Kenya, constituted an acknowledgement of
the Applicants’ debt and reactivated their cause of action in this matter.
17. The Respondent contended the opposite position. He averred that the EAC
Treaty 2000 was not applicable to the instant case by virtue of the principle of non
retroactivity. He recalled the collapse of the former EAC (as it is briefly narrated in
the background of this case). He stated that the employment of the Appellants ceased
to exist on the division date of each institution and that no contrary intention by the
founders of the new Community, has been shown by the Appellants. He concluded
that, in the absence of any such contrary intention for its continuance, the current
Treaty cannot operate retrospectively. Moreover, since this Court is a creation of the
EAC Treaty of 2000, it cannot be seen to interpret and apply the EAC Treaty of 2000
to acts or facts that took place in 1977.
18. The principle of non retroactivity is a well known doctrine. It is generally applied
in the jurisprudence of Public International Law. It constitutes a limit on the scope
of a Treaty ratione temporis[see “O. Dorr and K Schmalenhack (eds)], Vienna
Convention on the Law of Treaties, Springes – Verlag Berlin Heldelberg 2012; A.
Buyse: “A Lifeline in Time- Non-retroactivity and Continuing Violations under the
ECHR” In Nordic Journal of International Law, 75: 63-88, 2006, Pr Dr J. Wouters, Dr
D. Coppens, D. Geraets: “The Influence of General Principles of International Law”
414
http://www.kuleuven.be .
19. When a treaty is not retroactive, the consequence is that it cannot apply to any act
or fact which took place or any situation which ceased to exist before the date of
its entry into force. Retroactivity of a treaty may derive either explicitly from the
provisions of the treaty itself, or it may implicitly be deduced from its interpretation.
20. Upon closely and carefully reading the EAC Treaty, we did not find any provisions
explicitly stating that the Treaty may be applied retroactively. We, then, turned to
its interpretation in a bid to determine whether the framers of the Treaty had any
intention to make the EAC Treaty retroactive.
21. The performance of this Court’s duty in this regard, is guided by the Vienna
Convention on the Law of Treaties. Article 2 (1) (a) of that Convention defines the
instruments/treaties to which the Convention applies. The Article states as follows:
“For the purposes of the present Convention:
(a) ‘treaty’ means an international agreement concluded between States in written
form and governed by international law, whether embodied in a single instrument
or in two or more related instruments and whatever its particular designation;”
22. On the specific issue of non retroactivity, Article 28 of the Vienna Convention
provides 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 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.”
That Article helps in establishing the intention of the parties where this intention
is not explicitly expressed in a particular Treaty. Such is the case with the EAC
Treaty in the instant case. This Court, therefore, needed to interpret the Treaty in
order to establish whether the EAC founders manifested any intention to make their
Treaty retroactive. Moreover, further guidance in this lies in Article 31 of the Vienna
Convention which provides, inter alia, as follows:
meaning to be given to the terms of the treaty in their context and in the light of
(1) any agreement relating to the treaty which was made between all the parties
in connection with the conclusion of the treaty;
(2) any instrument which was made by one or more parties in connection with
the conclusion of the treaty and accepted by other parties as an instrument
related to the treaty…”
23. Consistent with the above guidelines, this Court interpreted the provisions of the
EAC Treaty: it placed them against the objectives and purposes of the Treaty. We
find that the intention of the framers of the new EAC Treaty of 2000 was to turn the
page of the past and to build a new project for the future.
24. The context of the creation of the new EAC Community confirms that finding. The
Preamble to the EAC Treaty leaves no doubt about the objective of putting a definite
end to the defunct Community. The fourth paragraph of the Preamble clearly states
that:
415
“AND WHEREAS in 1977 the Treaty for East African Co-operation establishing the
East African Community was officially dissolved,…“
The fifth paragraph of the same Preamble likewise underscores the fact of that
“dissolution”, thus:
“AND WHEREAS upon the dissolution of the East African Community the said
countries signed … the Community Mediation Agreement 1984 for the division of
the assets and liabilities of the former East African Community.”
25. From the preambular paragraphs quoted above, it is patently clear that far from
manifesting any intention to resurrect the old Community or its Treaty, the framers
of the new Treaty made their intention abundantly obvious: namely, to officially
dissolve the defunct Community and then, to divide and share out the assets and
liabilities of the defunct Community among the three Partner States of the old
Community. Accordingly, this Court agrees with the finding of the Court below that
the EAC Treaty 2000 cannot be applied retrospectively. This particular point is put
beyond any shadow of a doubt by Article 15.00 of the Mediation Agreement 1984,
which stipulates that:
“The Treaty for East African Co-operation, dated 6th June, 1967,is hereby abrogated.”
The above finding leads the Court to examine yet another question: Was the
application of non retroactivity relevant to the instant case?
The conditions specified byO. Dorr and K. Schmalenhack (supra) for fulfilling the
test of “relevant application” of the principle of non retroactivity, are as follows:
1) Existence of a Treaty to which the Respondent is a party. In the instant case,
there exists the EAC Treaty.
2) The absence of any intention of the parties to apply their Treaty retroactively. In
the instant case such absence has been amply demonstrated in the above Court
analysis concerning the EAC Treaty.
3) 3. An act or fact which took place, or a situation which ceased to exist, before the
entry into force of the Treaty concerned. In the instant case, we have the alleged
refusal by the Republic of Kenya to pay the terminal benefits of the former
employees of the defunct Community in execution of the Mediation Agreement
signed in 1984 after the dissolution of the Community in 1977.
4) The entry into force of the Treaty is posterior to the act; fact or situation which
constitutes the cause of action against the Respondent. In the present case, the
EAC Treaty entered into force for Kenya on 7July 2000, after the Appellants
‘claim which was already before the Kenyan High Court at Nairobi.
5) The Claimant asks the Court for the application of the Treaty to the Party in
respect of the act/fact which took place or situation which ceased to exist before
the coming into force of the Treaty. In the instant case, the Appellants prayed
this Court to apply the EAC Treaty to their case.
26. From all the above, this Court finds that the instant case meets the necessary
conditions for the principle of non retroactivity to be applied. In this regard, 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
way before the entry into force of the EAC Treaty in July 2000. We, therefore, agree
with the Court below that the principle of non retroactivity is relevant to the instant
416
case.
Consequently, the first ground of this appeal fails.
Ground 2: Whether the First Instance Division made findings of fact with finality at
the preliminary stage without a full trial?
27. Learned Counsel for the Appellants contended that the question of non retroactivity
was an issue of fact. From this stand point, he contended that the Court below could
not, therefore, determine this point at the preliminary stage, without full trial.
28. The Respondent postulated a totally opposite understanding of the issue of non
retroactivity of a Treaty. He averred that non retroactivity is a pure point of law,
intertwined with jurisdiction, which the Court can even consider on its own motion.
29. We are of the view that the Court below applied the correct law. The objection of
non retroactivity of a Treaty is a fundamental issue, one that goes to the root of the
case. The court cannot avoid that question. It must determine it at the outset, before
dealing with any other issues. True, it is not possible to deal with the objection
of non retroactivity without considering the cause of action of the particular case.
However, such consideration helps only to situate the objection in a certain period,
and it does not transform the principle of non retroactivity into a matter of facts. We
agree with the Respondent that objection of non retroactivity is interconnected with
the question of jurisdiction. The Court must consider the question even where the
Parties themselves fail to raise it. Indeed, it is incomprehensible that the Respondent
omitted to bring it up at the Scheduling Conference in the Court below. Nonetheless,
it is recognized, in our jurisprudence that for the attainment of substantive justice, a
point of law can and should be raised at any time during the course of the proceedings,
preferably at the earliest available opportunity.
For these reasons, the second ground of appeal also fails.
Ground 3: Whether there was procedural irregularity for the Court below to entertain
and determine the issue of retroactivity without the Appellants’ submissions?
30. Under this ground the Appellants raised three distinct sub issues, which could be
summarized as:
i) smuggling into the case the issue of non retroactivity, when the Parties had not
agreed any such issue during the Scheduling Conference;
ii) denying the Appellants sufficient notice to respond to, and a fair opportunity
to be heard on, the smuggled issue of non retroactivity (all in contravention of
natural justice);
iii) raising non retroactivity as a preliminary point of objection, when it was not a
point of pure law.
31. Counsel for the Appellants contended that the issue of non retroactivity of the EAC
Treaty was not among those which were agreed upon by the Parties during the
Scheduling Conference. He averred that the point was introduced only subsequently
in the Respondent’s written submissions after the hearing; but that, nonetheless,
the Court proceeded to consider and determine that point with finality, without
affording the Appellants effective notice to respond, or an opportunity to present
their submissions thereon. He prayed this Court to find that all this amounted to a
procedural irregularity; and to reinstate the case in order to enable the Appellants to
present their submissions.
417
32. He averred that in determining the point and making a finding on it without full
trial, the Court below contravened the well established principle of natural justice.
33. On the third sub issue, Counsel contended that non retroactivity is an issue of fact,
not of law, which should not have been entertained by the Court below by way of a
preliminary objection.
34. This Court considers that, even if it was not agreed upon during the hearing, the
issue of non retroactivity was totally unavoidable. It fundamentally determines the
applicability of the new Treaty to the Reference. Without prior determination of this
point, the Court could not proceed even one step further. Nonetheless, the Court
below should have afforded the Appellants the opportunity for effective notice to
make their submissions on that point. The failure to do so constituted an irregularity.
Nevertheless, the injustice occasioned has now been duly cured, in as much as the
Appellants have been given the opportunity to submit on the point in this appeal.
35. Given our finding that non retroactivity is a fundamental point of law, we need not
delve into or tarry long on the Appellants’ sub issue of whether non retroactivity
is a point of fact, which the Court below should not have entertained by way of a
preliminary point of objection. It is evident from our analysis of the issue elsewhere
in this judgment, that retroactivity is eminently a point of pure law, which this Court
is not only entitled to raise on its own motion, but also to entertain as a point of
objection that is capable of disposing of the entire case.
Therefore, the third and last ground of this appeal also fails.
Effects of non Retroactivity to the Question of Jurisdiction
36. While recognizing the jurisdiction of this Court over the interpretation and
application of the EAC Treaty, as provided for by Article 27(1), the Respondent
argued that the instant Reference does not deal with the interpretation nor the
application of the Treaty.
37. The Court below, considering the submissions of the parties, held that it had
jurisdiction on the basis of Articles 27(1) and 23 of the Treaty, but that the EAC
Treaty was not applicable to this Reference on account of the non retroactive
application of the Treaty to that particular Reference.
38. 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 of the case there and then. As
non retroactivity renders the Treaty inapplicable forthwith, what else can confer
jurisdiction on the Court? Non retroactivity leads the Court to the lack of jurisdiction.
39. This is the first time that this Court has been confronted with the issue of non
retroactivity. The jurisprudence of other International Courts would help to illustrate
the effects of non retroactivity; particularly so, concerning the consequential, but all-
critical question of jurisdiction. In this connection, three cases come to mind:
(1) The Ambatielos case (jurisdiction), judgement of July 1st 1952; I.C.J. reports
1952, p.28;
(2) Mavrommatis Palestine Concessions (Greece v U. K.), 1924, P.C.I.J., (SER. B) No.3
(Aug.30) Publications of the Permanent Court of International Justice Series A
– No.2; collection of judgements A.W. Sfjthoff’n Publishing Company, Leyden,
p. 194; and
418
(3) W. T.O., Brazil – Measures Affecting Desiccated Coconut, AB 1996 – 4, Report of
the Appellate Body, page 15.
In all the three cases quoted above, the consequences of a finding of non retroactivity
of a treaty, invariably led to a finding of lack of jurisdiction; and that was the end of
the proceedings.
40. This Court has repeatedly underlined the effect of lack of jurisdiction. Without it, “a
Court cannot take even the proverbial first Chinese step in its judicial journey to hear
and dispose of the case” – (see Appeal No.3 of 2011: Attorney General of the United
Republic of the Tanzania vs. African Network for Animal Welfare, EACJ, Appellate
Division, Judgment of 15 March, 2012, p.7).
41. Having in mind the effect of non retroactivity of a Treaty, the point should have been
determined before any other issues in order to avoid the ambiguity contained in the
final conclusion of the Ruling of the Court below, which held as follows:
“In conclusion, we rule that although the Court has the jurisdiction to hear the
Reference and that it is not barred by the doctrine of res judicata or the rule of
exhaustion of local remedies, nonetheless, it cannot entertain the Reference on
account of the non retrospective application of the Treaty”.
42. For the above reasons, this Court finds that the EAC Treaty is non retroactive. It
is not applicable to the present Reference. Consequently, the East African Court of
Justice is not clothed with the jurisdiction to entertain it.
43. Before departing from this matter altogether, this Court is constrained to make the
following observations. The framers of the new EAC Treaty of 2000 saw it fit--indeed
desirable -- to interpose in the new Treaty the fact of the Mediation Agreement of
1984, which the three former Partner States of Kenya, Uganda and Tanzania had
agreed a formula for dividing and sharing the assets and liabilities of the defunct
Community, including the settling of terminal benefits and pensions of the former
employees of the defunct Community. The interposition of all these factors into
the new Treaty was, thus, a deliberate and express action on the part of the Partner
States. In our view, beyond mere recording of history, the interposition was done for
a reason and a purpose - namely, to “revisit” or to “keep alive” the nexus between the
Old and the New order of the East African integration (paragraph 2 of the Preamble);
cooperation, former and future (paragraph 6 of the Preamble); and upgrading into a
Treaty the Region’s Tripartite efforts of 1997-2000 (paragraph 9 of the Preamble); as
well as breathing a fresh breath of oxygen into the important issue of the sharing and
the management of the assets and liabilities -- including the welfare of the former
employees of the defunct Community (paragraph 5 and 6 of the Preamble). The
interposition of these factors was, thus, a clear statement by the new Community
expressing its profound interest in the continued management of the assets and
liabilities of its predecessor Community, and the welfare of the former employees of
that defunct Community.
44. By analogy to municipal law, the Mediation Agreement on the sharing of assets
and liabilities was the equivalent of drawing a Will and appointing Administrators/
Executors to oversee and administer the Estate of the defunct Community.
Conversely, the Mediation Agreement was the equivalent of the creation of a Trust
and appointment of Trustees to oversee and manage the residue of the affairs of the
419
defunct Community (see in particular Article 10 and Annex “F” of the Mediation
Agreement). In either case, the Administrators/Executors or Trustees owe a duty
of care to manage the Estate or Trust for the benefit of the beneficiaries (in this
case the former Community employees), in accordance with the well known and
generally accepted norms and standards that govern Administrators, Executors
and Trustees. In the event of any “audit” queries concerning the exercise of their
duty, the Administrators, Executors or Trustees of the Estate or Trust must be held
responsible and accountable.
45. From all this, Kenya’s former Community employees (who are the Applicants/
Appellants before this Court), appear to have a genuine and legitimate basis for
their grievance of injustice against the Kenyan State concerning the issue of their
Community pensions.
46. Nonetheless, notwithstanding our being a court of justice, the jurisdiction for
interrogating the merits (or demerits) of Appellants’ grievance lies not in this Court,
on account of the non retrospective application of the new EAC Treaty of 2000. That
jurisdiction properly lies with the national Courts and allied fora, in as much as the
Mediation Agreement of 1984 effectively and definitively moved the management
of the assets and liabilities of the defunct Community from the remit of the East
African Community, to the realm of the various National States.
Conclusion
47. In the result, this Court dismisses all the grounds of the Appeal. Each Party shall bear
their own costs of this appeal, and of the Reference in the Court below.
It is so ordered.
****

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2005 2011 Eacjlr 1 PDF

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EAST AFRICAN COURT OF JUSTICE LAW REPORT

Hon. Justice Dr. Emmanuel Ugirashebuja President

Hon. Justice Dr. E. Ugirashebuja President

First Instance Division

Hon. Lady Justice M. Mugenyi Principal Judge

COMPOSITION 2001- 2011

Hon. Mr. Justice H. R Nsekela President

Hon. Mr. Justice M.M. Ole Keiwua President

SUBJECT MATTER INDEX

Consistency in Treaty Interpretation - EALA re-election - Partner State discretion-

Cessation of sovereignty Justiciability - Sovereign right of Partner States to amend the

Due process –No competence in constitutional referendum dispute resolution - Whether

Jurisdiction on human rights issues - Limitation of time- Preliminary objection- Officers

Computation of time - Jurisdiction - No exhaustion of local remedies required- Rule of

Limitation of time - Cause of action - Interpretative jurisdiction of the court on human

Jurisdiction- No exhaustion of local remedies required - Non Retrospective Treaty

Jurisdiction- Invoking internal laws- Preliminary objection The principle of pacta

Jurisdiction in national courts - Procedural irregularity- Res judicata- Non retrospective

Continuous chain of actions - Continuing Treaty infringements – No mathematical

African Charter on Human and Peoples’ Rights, 1981

A.C. Appeal Cases

Moijo M. ole Keiwua P, Joseph Mulenga VP, Augustino S. L. Ramadhani J, Kasanga

Actions inconsistent with the Treaty-East African Legislative Assembly mandate-

the Court the issues were merged as follows:

Attorney General Of Kenya , Clerk of The East Africa Legislative Assembly,

Abdirahim Haitha Abdi, Sarah Godana Talaso, Christopher Nakuleu, Rueben

Moijo M. ole Keiwua P, Joseph N. Mulenga VP, Augustino S. L. Ramadhani J, Kasanga

Doctrine of estoppel – Election of the East African Legislative Assembly members -

In 2001, the Kenya National Assembly, pursuant to Article 50 of the Treaty,

Submissions on Issue No.1

Finding on Issue No. 1

Finding on Issue No.2

Submissions on Issue No.3

Findings on Issue No.3

to upholding an amendment of Article 50, by one Partner State unilaterally. We can

Moijo M. ole Keiwua P, Joseph Mulenga VP, Augustino S. L. Ramadhani J, Kasanga

Wrongly joined parties

Arising From EACJ Reference No.1 of 2006

Moijo M. Ole Keiwua, President, Joseph N. Mulenga Vice President, Augustino S. L.

Correction of judgments or orders- Discretion- Interested party- whether the extracted

1. On 27th November 2006, this Court delivered a ruling in an interlocutory application

Moijo M. ole Keiwua P, Joseph N. Mulenga VP, Augustino S. L. Ramadhani J, Mary

the following words:

Article 29(1) of the Treaty provides as follows:

Christopher Mtikila And The Attorney General of The United Republic

Moijo M. ole Keiwua P, Augustino S. L. Ramadhani J, Kasanga Mulwa J, Mary Stella

Mulenga V.P., Kasanga Mulwa and Arach -Amoko JJ.

Cessation of sovereignty - Justiciability - Sovereign right of Partner States to amend

sovereignty of the Partner States.

Subject matter of the Reference

Submissions on Issue No.1

Conclusion on Issue No.1

Submissions on Issue No.2

39. Consequently, according to learned counsel, the submission of the proposed

Consideration and conclusion of Issue No.2

the Attorneys General’s draft amendments to be communicated to the Partner States,

Submissions on Issue No.3

»» in recommending the amendments Council was motivated by an apparent

concerned with a matter belonging to the inner psychological process, particularly in

Issues No.4 and No. 5

on the requirement of involvement of people in the Treaty amendment process shall

Arising Out of Reference No.3 of 2007

Janata Dal v H.S. Chowdhary AIR 1993 SC 892