Reported by Linda Awuor

Background to the case

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.

The Applicant alleged that he was arrested, detained and confined by airport immigration authorities. The Immigration authorities however maintained that that they handed him to Kenya Airways who took him into their custody. The Applicant 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. 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 maintained that they owed him no such duty, under the law.

The Applicant contended 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 and filed a reference in the East Africa Court of Justice seeking redress.

It was the Applicant’s contention that it was unlawful on the part of the Respondent not to 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.

The Respondent denied that the Applicant was arrested, restrained or detained by immigration authorities and stated, 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 was removed from the non-permissible area and returned to Kenya on its first available flight.

Issues:

1. Whether the Reference was properly before the Court;

2. Whether the Treaty establishing the East African Community and the East African Common Market Protocol take away the sovereignty of Uganda to deny entry to unwanted persons who are citizens of Partner States of the EAC;

3. 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 on the fundamental and operational principles of the East African Community;

4. 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 on the free movement of persons;

5. Whether the Provisions of section 52 of the Uganda Citizenship and Immigration Act were inconsistent and in violation of Articles 6 (d), 7 (2) and 104 of the Treaty and Article 7 of the Protocol;

6. Whether the Applicant was entitled to the prayers sought.

International law – jurisdiction – jurisdiction of the East Africa Court of Justice – whether the actions complained of by the applicant were breaches of obligations under the Treaty or human rights violations – whether the Court had jurisdiction to hear the matter – Treaty for the Establishment of the East African Community Article 27(1)

International law – fundamental and operational principles of the East African Community – where the Applicant was detained at Entebbe International Airport - whether the actions complained of, of the Republic of Uganda, were in conformity with Articles 6 (d) and 7(2) of the Treaty

International law –sovereignty of member states – application of domestic laws vis a vis Community laws – whether community law takes precedence over domestic law – whether domestic law can be overridden by community legal provisions - Whether the Provisions of section 52 of the Uganda Citizenship and Immigration Act were inconsistent and in violation of Articles 6 (d), 7 (2) and 104 of the Treaty and Article 7 of the Protocol

International law – Treaty for the Establishment of the East African Community and the East African Common Market Protocol –free movement of persons – where the applicant was denied entry entry into Uganda and deported back to Kenya without disclosure of the reasons, due process of law or any form of administrative process being carried out – whether this amounted to violation of the Applicant’s fundamental rights and freedoms - Article 104 of the EAC Treaty and Article 7 (6) of the Common Market Protocol

Words & Phrases

Definition of “due process” – definition according to the Black’s Law Dictionary

Definition of “principle” as applied under article 6 of the Treaty for the Establishment of the East African Community

Article 6 of the Treaty for the Establishment of the East African Community on Fundamental Principles of the Community provides:

The fundamental principles that shall govern the achievement of the objectives of the Community by the Partner States shall include:

(a) Mutual trust, political will and sovereign equality;

(b) Peaceful co-existence and good neighborliness;

(c) Peaceful settlement of disputes;

(d) Good governance including adherence to the principles of democracy, the rule of law, account ability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protect ion of human and peoples right s in accordance with the provisions of the African Charter on Human and Peoples’ Rights;

(e) equitable distribution of benefits; and

(f) co-operation for mutual benefit.

Article 7 of the Treaty for the Establishment of the East African Community provides:

Operational Principles of the Community

1. The principles that shall govern the practical achievement of the objectives of the Community shall include:

(a) people-centered and market-driven co-operation (b) the provision by the Partner States of an adequate and appropriate

(b) enabling environment , such a s conducive policies and basic infrastructure;

(c) the establishment of an export oriented economy for the Partner

(d) States in which there shall be free movement of goods, persons,

(e) labour, services, capital, information and technology;

(f) (d) the principle of subsidiarity with emphasis on multi-level

(g) participation and the involvement of a wide range of stake- holders in the process of integration;

(h) the principle of variable geometry which allows for progression in

(i) co-operation among groups within the Community for wider

(j) integration schemes in various fields and at different speeds;

(k) the equitable distribution of benefit s accruing or to be derived from

(l) the opera t ions of the Community and measures to address economic

(m) imbalances that may arise from such operations;

(n) the principle of complementarity; and

(o) the principle of asymmetry.

Article 7 of the East African Common Market Protocol provides:

Free Movement of Persons

1. The Partner States hereby guarantee the free movement of persons who are citizens of the other Partner States, within their territories.

2. 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.

Held:

1. 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. However, it is not the violation 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.

2. The Treaty provisions alleged to have been violated have, through Uganda’s voluntary entry into the EAC Treaty, been scripted and transformed into several principles, obligations and treaty guarantees 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 this alleged infringement which, through interpretation of the Treaty under Article 27(1) constitutes the cause of action in the Reference, and consequently, establishes the legal foundation of the jurisdiction of this Court.

3. Article 6 of the Treaty provides the six Fundamental Principles of the Community. Black’s Law Dictionary defines “Principle” as “a basic rule, law or doctrine. 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.

4. 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 aspire to achieve their observance, they are to observe them as a matter of Treaty obligation. All the six principles in the Article were 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.

5. The Treaty 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. 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.

6. By accepting to be bound by the provisions of the Treaty, 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.

7. 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.

8. The Court adopted the definition of due process as provided by the Black’s Law Dictionary to mean “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”.

9. Based on Article 54 of the Protocol and the decision of the European Court of Justice in State v Royer Case 48/75, the immigration officials had 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

10. 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.

11. Detention is 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 a threat to integration.

12. 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.

13. 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.

14. 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.

Judgment for the applicant, each party to bear its costs

Reported by Linda Awuor

Issues:

1. Whether the application met the requirements for orders of stay of execution

2. Whether a notice of appeal is a sufficient expression of an intention to file an appeal

3. Whether the applicant was exempt from the requirement of payment of security for costs

International Law – rules of procedure for the EACJ –stay of execution – requirements for orders of stay of execution - where the applicant had lodged the notice of appeal – whether this was sufficient expression of an intention to file an appeal – whether the application met the requirements for orders of stay of execution - Rules 54 (2), 110 (1), (2) and (3) of the Rules of Procedure of this Court

International law – rules of procedure for the EACJ – security for costs – requirement for security for costs– whether the Applicant was exempt from the requirement of security for costs - Rule 115 (2) of the Court’s Rules of Procedure

Background to the case

In Application No. 12 of 2012, the East Africa Law Society (EALS) sought the Court’s leave to produce additional evidence in form of documentation and electronic format after the close of pleadings in Reference No. 2 of 2012. At the scheduling conference, the parties had consented that all evidence would be tendered by way of affidavits. Subsequently, EALS obtained evidence which they alleged could not be easily obtained to be used at the Reference as it necessitated “surmounting of diplomatic hurdle and corporate red-tape”. They therefore brought a Notice of Motion dated 2nd September, 2012 under the provisions of Rule 46 (1) of the Rules of the Court seeking for an order that the Court grant them leave to produce additional evidence in form of documentation and electronic format after the close of pleadings. The Court allowed the application stating that the import of Rule 46(1) was to ensure that no evidence is shut out even after pleadings have closed and to enable the Court exercise discretion whenever necessary to do so and to afford an opposing party adequate opportunity to comment on and rebut the new evidence tendered by the other party and if necessary, file fresh evidence to contradict it.

The Attorney General of the Republic of Uganda, being aggrieved, filed the current application for stay of execution on the grounds that he had lodged a Notice of Appeal against the whole Ruling in Application No. 12 of 2012 and accordingly requested for the record of proceedings to enable him file a record of appeal. Further, he submitted that the intended appeal had a high chance of success, and that if the Court did not grant a stay of execution of the orders in Application No. 12 of 2012, it would render the intended appeal nugatory.

Held

1. Courts have established three conditions for determination of applications for stay of execution:-

That the application has been made without unreasonable delay; and

That security for costs has been given by the Applicant.

The Applicant has satisfied the first requirement because the Court is alive to the fact that if it continues with the hearing of Reference No.2 of 2012, the intended appeal would be rendered nugatory and the Applicant would be prejudiced and suffer loss if that appeal were to succeed.

2. The impugned Ruling was delivered on 13th February 2013 and the Applicant lodged a Notice of Appeal on 4th March and accordingly on the same day requested for the records of proceedings to enable him file a record of appeal. It cannot, therefore, by any stretch of imagination be said that there was a delay on the part of the Applicant. The application was made without unreasonable delay.

3. A notice of appeal is a sufficient expression of an intention to file an appeal. Such an action is sufficient to found the basis for grant of orders of stay in appropriate cases.

4. Pursuant to Rule 1 (2) of the Rules of this Court, the Court has inherent powers to grant the Applicant’s prayers. This rule gives the Court inherent power to: “Make such orders as, may be necessary for the ends of justice”. The main principle to be applied is whether the dictates of justice so demand.

5. Where a Claimant is a Partner State, the Secretary General or any of the institutions of the Community, no security for costs shall be required. The Applicant has been sued for and on behalf of the Republic of Uganda which is a Partner State and therefore exempt from the requirement for payment of security for costs

Orders of the Court

a) The orders issued in Application No.12 of 2012 be stayed pending the determination of an intended appeal by the Applicant, which must be filed strictly in accordance with Rules of this Court.

b) The costs of the application shall abide the outcome the intended Appeal.

Reported by Linda Awuor

Background to the case

On 30th November 2011, the Summit of the East African Community issued a Communiqué after meeting in Bujumbura, Burundi, where it stated that it approved the Protocol on Immunities and Privileges for the East African Community, its organs and Institutions for conclusion and that it considered and adopted the Report of the Team of Experts on fears, concerns and challenges on the Political Federation.

In an application filed on January 20, 2010, the applicant Mr. Timothy Alvin Kahoho, a citizen of the United Republic of Tanzania sought to challenge the Summit’s directives.  Among the directives in question, was one to propose an action plan on and a draft model of the structure of the East African Political Federation, one on the conclusion of the protocol on immunities and privileges for the East African Community, its Organs and Institutions, one on producing a roadmap for establishment and strengthening of institutions identified by a team of experts as critical for the functioning of the Customs Union, Common Market and Monetary Union and one on formulation of an action plan for the purpose of operationalising the other recommendations in a report of a team of experts. 

In the Applicant’s view, these directives were an infringement of Article 11 (5) of the EAC Treaty, which provides that while the EAC’s supreme Organ may delegate the exercise of any of its functions to one of its own, the Council of Ministers or to the Secretary General, there is no provision for the Summit to give directives to the Secretariat.

Mr. Kahoho argued that it was only the Council of Ministers and Partner States that could spearhead the process of establishment of the Political Federation and not the Secretariat as was directed by the 13th Summit. He further told the Court, that his application was in the interest of all citizens of East Africa, who he asserted stand to benefit from adherence to Treaty provisions by the Summit, the Council and the Partner States.

Article 73 of the Treaty provides as follows:

1. Persons employed in the service of the Community:

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

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

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

Article 138 provides as follows;

1. The Community shall enjoy international legal personality.

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

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

Article 151 provides that;

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

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

3. Each Protocol shall be subject to signature and ratifications of the parties hereto. 4. The annexes and Protocols to this Treaty shall form an integral part of this Treaty

ISSUES

1. Whether the 13th Summit decisions as set out in paragraph 6 of its Communiqué issued on 30th November 2011 in the Republic of Burundi approving the Protocol on Immunities and Privileges contravened Articles 73, 138 and 151 of the Treaty providing for immunity of persons employed in the East African Community;

2. Whether the 13th Summit of the Heads of States’ decision to mandate the Secretariat to undertake Protocol on Immunities and Privileges for the East African Community, its organs and Institutions for conclusion was in contravention of Articles 6, 7 and 123 (6) of the Treaty on the functional and operational principles of the Treaty.

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

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

5. Whether the Applicant was entitled to the prayers sought

International law – Treaty for the establishment of the East African Community –whether fast-tracking the Political Federation without finalizing the Customs Union, Common Market and Monetary Union and without consulting citizens of the Partner States would be a violation of the Treaty – Treaty for the establishment of the East African Community, Articles 6, 7 and 123 (6)

International law – Interpretation of Treaty – areas of cooperation – what amounts to areas of cooperation under the Treaty – proposed protocol on Immunities and Privileges for the East African Community – whether privileges and immunities amount to areas of co-operation under Article 138 of the Treaty – Treaty for the establishment of the East African Community, Articles 73, 138 and 151

International Law – Interpretation of Treaty – role of the Secretariat in the East African Community– whether the Secretariat can contribute towards the establishment of a Political Federation of the Partner States – whether the 13th Summit of the Heads of States’ decision to mandate the Secretariat to undertake Protocol on Immunities and Privileges for the East African Community, its organs and Institutions for conclusion was in contravention – Treaty for the establishment of the East African Community, Articles 6, 7 and 123 (6)

HELD

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

2. The language, structure and import of the Proposed Protocol, is in line with the harmonization, functioning, development and furtherance of the objectives of the Community and the implementation of the provisions of the Treaty and there are no inconsistencies therein.

3. The execution of any agreement under Article 138 (2) is not an ouster of the provision for conclusion of a Protocol under Article 151 where the situation so demands. The Treaty provisions must be read as complimentary to each other and none should be seen as independent and in conflict with another. To argue otherwise, would lead to a legal absurdity and a negation of the principle that the Treaty must be interpreted as a whole and not selectively to suit a set purpose.

4. The proposed Protocol was not wholly about staff immunities and privileges. Article 138 could clearly create an area of cooperation to which a Protocol could properly be concluded under Article 151 of the Treaty.

5. Article 131 was enacted to reduce frequent amendments of the Treaty whenever a new area of co-operation arises and which cannot otherwise be managed outside existing provisions of the Treaty. The issues arising from Article 138 aforesaid fit that reasoning perfectly.

6. Articles 11,14,18,21 and 71 of the Treaty, which create the functions of the Organs of the Community, provide that the Secretariat is the only Organ created by Article 9 of the Treaty to steer the ship of integration by implementing decisions of all the other Organs and its crucial role thereby ought to be recognized and supported. The Summit can direct the Secretariat as well as the Council in matters relating to the implementation of the Treaty. Whether in one instance it directs one and later the other, is not in any way a breach of the Treaty. These Organs must all work in tandem towards the attainment of the objectives of the Community and there is no error that was rectified when the Summit acted as it did in the 14th Summit.

7. Neither in the Reference nor in submissions, written and oral, was the sum of US $60,000 justified or proved. The oral claim that because of the Communiqué, the Applicant suffered high blood pressure and was therefore entitled to compensation was not sufficient evidence that the Applicant was lawfully entitled to the said sum.

Reference dismissed and each Party to bear its own costs.

Reported by Linda Awuor

Background

On 30th November 1999, the Heads of State of Kenya, Uganda and Tanzania signed the Treaty for the Establishment of The East African Community. The Treaty entered into force on 7th July 2000. Article 9(e) established the East African Court of Justice (hereinafter referred to as “the EACJ”), as one of the organs of the Community. Article 23 of the Treaty stipulated the role of the Court. The Applicant states that, during the course of its work, it discovered that the East African Community Summit had amended Chapter 8 of the Treaty in particular, by introducing a proviso to Article 27(1) and creating Article 30(3) and had also concluded the East African Community Customs Union Protocol and the East African Community Common Market Protocol.

The Applicant brought the reference arguing that the amendments to the Treaty and the dispute settlement mechanisms provided for in the two Protocols, deny original jurisdiction to the EACJ, from handling disputes arising from the Protocols contrary to the expectations of the Treaty and that in as far as they limit/oust the jurisdiction of the EACJ, were contrary to the provisions of the Treaty

Article 27 provides that:

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

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

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

Article 30 (3) provides:

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.

Issues:

1. Whether the amendment of the Treaty to introduce a proviso to Article 27(1) and Article 30(3) was inconsistent with or in contravention of Articles 5, 6, 8(1),(4) & (5), 23,33(2) and 126 of the Treaty on the functional and operational principles of the Treaty.

2. Whether the Customs Union Protocol and the Common Market Protocol in as far as they do not grant the East African Court of Justice jurisdiction of handling disputes arising from the implementation of these Protocols infringe Articles 5, 6, 8(1), (4) &(5), 23, 27(1), 30(1),(3) 33(2) and 126 of the Treaty.

3. Whether the Applicant was entitled to the declarations sought

International law – jurisdiction –jurisdiction of the East Africa Court of Justice –effect of amendment to Article 30(3)  of the Treaty – whether an institution of a Partner State can handle references brought by legal or natural persons directly – whether the amendment of the Treaty to introduce a proviso to Article 27(1) and Article 30(3) was inconsistent with the functional and operational principles of the Treaty- Treaty for the Establishment of the East African Community Articles 5, 6, 8(1),(4) & (5), 23,33(2) and 126

International law - interpretation of Treaty - Treaty for the establishment of the East African Community - whether provisions of the Common Market Protocol and the Customs Union Protocol conferring jurisdiction upon national judicial, administrative or legislative authorities were in contravention of the Treaty -  Articles 8 (1) (a) and (c), 27 (1), 33 (2) and 38 (1) and (2) of the Treaty and Articles 24 (1) (e) of the Protocol Establishing the East African Community Customs Union and Article 54 (2) of the Protocol for the Establishment of the East African Community Common Market

Held:

1. Although the EACJ had the primacy and supremacy over the interpretation of the Treaty, Article 33 of the Treaty, which is entitled “Jurisdiction of National Courts”, indicates that national courts also had some form of jurisdiction in interpretation of the Treaty even before the impugned amendments. The jurisdiction of the EACJ was, prior to the impugned amendments, wide and unlimited.

2. There was a legal vacuum created by the delay in concluding the protocol for the extended jurisdiction of the EACJ, and the amendments did not fill the same. The act of amending the Treaty in Article 27(2) and 30(3) was actually inconsistent with the Treaty, since it was retrogressive and did not fill the vacuum created by Article 27(2).

3. Although the impugned amendments did not take away or oust the jurisdiction of the EACJ, they undermined the supremacy of the EACJ as the judicial body whose responsibility is to ensure adherence to law in the interpretation of the Treaty as per Article 23. Great caution and restraint ought to have been exercised by the Partner States in introducing the impugned amendments because the dream of the framers of the Treaty was clearly that the interpretation of the Treaty was to be a preserve of the Community’s judicial body, namely, the EACJ.

4. The amendment to Article 27(1) created a window for the amendment of the Treaty or conclusion of protocols conferring the jurisdiction to interpret the Treaty on organs of Partner States to the exclusion of the EACJ. The amendment to Article 30(3) indicates that an institution of a Partner State can now handle references brought by legal or natural persons directly, under Article 30 of the Treaty, if such jurisdiction is conferred on it by a Partner State. This is likely to undermine the jurisdiction of the EACJ, since the EACJ will be powerless over such institutions. It is thus inconsistent with the object and the spirit of the Treaty in the Articles mentioned in this Reference.

5. The Court has the role and jurisdiction to interpret and apply the provisions of the two Protocols as well, pursuant to the Court’s jurisdiction under Articles 23 read together with Article 27 (1) of the Treaty. The provisions of the protocols did not oust the jurisdiction of the EACJ from handling disputes arising from the implementation of the said Protocols.

6. It is clear from Article 54(1) that disputes between Partner States over the interpretation of the Treaty remain governed by the Treaty, which means that this Court is primarily the one vested with jurisdiction over such disputes. This means that the Protocol does not oust the jurisdiction of the Court entirely.

7. The Common Market Protocol affords under Article 54(2) opportunity to persons who feel that their liberties recognized under the Protocol have been infringed upon by persons acting in their official capacities, to seek redress from their competent judicial, administrative, legislative or other authorities. While this would appear as if it is a parallel dispute resolution mechanism under the Treaty these dispute resolution mechanisms are merely alternative dispute resolution mechanisms intended for the speedy and effective resolution of trade disputes by experts in technical and specialized areas.

8. The EACJ is an organ of the Community established under Article 9 of the Treaty. For that reason, the EACJ takes precedence over national courts or institutions on matters pertaining to the implementation of the Treaty. Specifically, and with regard to the requirement of harmonization of activities in legal and judicial affairs under Article 126, the amendments and the establishment of specific dispute settlement mechanisms was unlikely to have any adverse bearing on the Court’s discharge of its functions as provided for under Article 23(1) and 27(1) of the Treaty

9. The EACJ derives its jurisdiction from Article 23 and the original Article 27(1) of the Treaty which includes all annexes and protocols negotiated to implement the Treaty. As such, there was no vacuum as far as the jurisdiction of the Court is concerned. The mechanisms were created for administrative expedience, and if any vacuum exists in the Treaty then it is the absence of the protocol for the extended jurisdiction of the EACJ more than a decade after the conclusion of the Treaty

10. The dispute resolution mechanisms under the two Protocols do not jeopardize in any way the achievements and objectives of the Treaty, given that Articles 33(2) and 34 may cure any conflicting interpretation by national courts or tribunals since the Court’s decision will prevail over the ones of national courts over similar issues.

11. The proviso to Article 27(1) and Article 30(3) of the Treaty undermine the supremacy of the EACJ and therefore contravene Articles 5, 6, 8 (1), (4) & (5) and 23 of the Treaty. The dispute settlement mechanisms provided for under the Customs Union and the Common Market Protocol do not oust the original jurisdiction of the Court of handling disputes there under.

Reference partially succeeded in issue No. 1, but did not make out a case of infringement of the Treaty provisions mentioned in issue No. 2 Each party to bear its costs, since the Reference was public interest litigation

Reported by Linda Awuor

Background

The Appeal before this Court originated in Application No. 4 of 2011 arising from Reference No. 4 of 2011 lodged in the First Instance Division on 15th June 2011. The facts that gave rise to this case happened in both Kenya and Uganda. The Applicants averred that they were arrested, and forcibly removed from Kenya through abduction between 22nd July and 17th September 2010, and handed over to Uganda where they are now illegally detained, without due process of extradition; and that their impending trial in Uganda is in violation of their fundamental rights, both under Kenyan and Ugandan Constitutions, under International Law, and also under the Treaty establishing the East African Community (“the Treaty”). It is against those acts that the Applicants moved the First Instance Division of the EACJ for orders that the Court restrains and prohibits the Government of Uganda (the Second Respondent herein) from proceeding with the prosecution and/ or trial of the Applicants pending the hearing and the determination of Reference No. 4 of 2011 due to the nature and urgency of their Application. However, in opposition to the Application, the Second Respondent (Attorney General of Uganda) raised a preliminary objection on limitation of time. He contended that the Reference on which the Application is based is itself out of time, consequently the Application is time barred. The First Instance Division on 1st December 2011, concluded that the alleged Treaty violations complained of in the Reference, were continuous; could not be subjected to mathematical computation of time; and that, therefore, the Reference was properly lodged before it. Accordingly, that Court disallowed the objection. Aggrieved by the above decision, the Appellant (Attorney General of Uganda) lodged an appeal on 17th February 2012, based on the ground that the First Instance Division erred in law in finding that Reference No. 4 of 2011 was not time barred and was properly before the Court.

Issues:

1. Whether the Treaty establishing the East African Community provides room for the concept of continuing violations

2. Whether the Court has power to extend the time limit of two months provided in Article 30 (2) of the Treaty for the Establishment of the East African Community

International law – treaty interpretation – Treaty for the Establishment of the East African Community - whether the First Instance Division erred in law in interpreting that Article 30(2) does not apply to the continuing violations - Article 30 (2) of the Treaty

International Law - principle of continuing violations - applicability of the principle of continuing violations – where the Applicants filed their Reference in excess of two months after they became aware of the alleged infringement of their rights - whether the acts complained of were continuous and therefore, could not be subjected to the time-limit – Article 30 (2) of the Treaty

Article 30 (2) states that:

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

Held:

1. The cause of action for the Reference before the Court is not the alleged unlawful detention of the Respondents in Uganda, nor their arrest and rendition from Kenya to Uganda, which are a matter of criminal law. Rather, it is the alleged infringement of the EAC Treaty by the Partner States of Kenya and Uganda, which is a matter of civil law.

2. The purpose of Article 30 (2) of the Treaty was to secure and uphold the principle of legal certainty; which requires a complainant to lodge a Reference in the East African Court of Justice within the relatively brief time of only two months. Nowhere does the Treaty provide for any exception to the two month period. Therein lies the critical difference between the EAC Treaty (which governs trade matters as the objective of cooperation between Partner States) on the one hand; and, on the other hand, Human Rights Conventions and Treaties which provide “exceptions” (for continuing violations) on the grounds that securing the fundamental rights of the citizens is of paramount essence.

3. There is nothing in the express language of Article 30 (2) that compels any conclusion that continuing violations are to be exempted from the two month limit. Nor does the nature of the particular violation alleged in the instant case demonstrate any intent on the part of the drafters of the Treaty to treat unlawful arrest and rendition as “continuous violations” for purposes of the time limit of Article 30 (2)

4. It is clear that both the content and intent of Article 30 (2) provide a legal framework for determining the starting date of an act complained of, or alternatively the date on which the complainant first acquired the requisite knowledge, all with the objective of ascertaining the commencement and expiry of the time limit of two months. In that spirit, the Article does not contemplate the concept of continuing breach or violation, in as much as the acts complained of, or the time when a claimant had knowledge of the breach or infringement, have a definitive starting date and expiry date within the two month period. The only continuing period envisaged under the Article is the grace period (implicitly allowed in the second limb of that Article) for the complainant to have knowledge of the act. From the date of such knowledge, the legal clock for the two month period starts to tick.

5. The solution that was designed to balance the interest of the individual complainant against the collective interests of all the other Community citizens, is the overall framework of Article 30, in which the collective interest of legal certainty is secured under Article 30 (2), but without compromising the individual complainant’s right to judicial redress (if promptly lodged within two months under Article 30 (2), including the grace period afforded the complainant to acquire knowledge of the particular act). That grace period can be as long as it takes for the complainant to be possessed of the requisite knowledge. Only after the complainant has that knowledge, will the period of the two-month limitations begin to run. That, in this Courts view is a perfectly fair, equitable and rational solution to balance the competing interests.

6. The Reference, having been filed more than one year after the happening of the events complained of, was time-barred for non-compliance with Article 30 (2) of the Treaty

Appeal allowed

POWER OF THE EAST AFRICA COURT OF JUSTICE TO ISSUE A STAY OF PROCEEDINGS

Reported by Linda Awuor

Issue

1. Whether the East African Court of Justice Rules of Procedure prescribe circumstances under which the Court’s inherent powers to stay proceedings can be exercised.

Rule 1 (2) of the East African Court of Justice Rules of Procedure reads as follows:

“Nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.”

International Law-practice and procedure - rules of procedure under the East African Court of Justice – whether the Rules prescribe circumstances under which the Court’s inherent powers to stay proceedings can be exercised – East African Court of Justice Rules of Procedure Rule 1(2) and Rule 21(1)

Reported by Linda Awuor

Background of the case:

The Protocol Establishing the East African Community Customs Union (The Customs Protocol) Customs Union Protocol was concluded and signed by the Presidents of the EAC Partner States on 2nd March 2004 and the Protocol for the Establishment of the East African Community Common Market (the Common Market Protocol) Protocol was similarly concluded on 20th November 2009.

Article 24(1) of the Customs Union Protocol establishes the East African Community Committee on Trade Remedies (Committee) and vests it with dispute settlement rules in accordance with the East African Community Customs Union (Dispute Settlement Mechanism) Regulations.

Article 54(2) of the Common Market Protocol provides that the Partner States shall guarantee in accordance with their Constitutions, national laws, and administrative procedures that, “the competent judicial, administrative or legislative authority shall rule on the rights of the person who is seeking redress” for infringement of rights under the Protocol.

Issues:

1. Whether the East Africa Court of Justice lacks jurisdiction over disputes arising out of both the Customs Union and the Common Market Protocols.

2. Whether the dispute settlement mechanism under the Customs and the Common Market Protocols excludes/ousts the jurisdiction of the Court over disputes arising there under.

3. Whether the establishment of the dispute resolution mechanism or the conferring of jurisdiction upon national judicial, administrative or legislative authorities was against the policy objectives of the Treaty

International law – jurisdiction – interpretative jurisdiction of the East Africa Court of Justice – whether the establishment of various authorities with dispute resolution powers under the EAC Treaty takes away the interpretative jurisdiction of the Court - Treaty for the Establishment of the East African Community Articles 6, 7, 8, 27(1), 33(2), 38,Articles 24 (1) (e) of the Protocol Establishing the East African Community Customs Union (The Customs Protocol) and Article 54 (2) of the Protocol for the Establishment of the East African Community Common Market (the Common Market Protocol)

International law - interpretation of Treaty - Treaty for the establishment of the East African Community - whether provisions of the Common Market Protocol and the Customs Union Protocol conferring jurisdiction upon national judicial, administrative or legislative authorities were in contravention of the Treaty -  Articles 8 (1) (a) and (c), 27 (1), 33 (2) and 38 (1) and (2) of the Treaty and Articles 24 (1) (e) of the Protocol Establishing the East African Community Customs Union and Article 54 (2) of the Protocol for the Establishment of the East African Community Common Market

Words and phrases – jurisdiction – definition of the term jurisdiction

ARTICLE 151 of the EAC treaty provides that:

Annexes and Protocols to the Treaty

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

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

3. Each Protocol shall be subject to signature and ratification by the parties hereto.

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

ARTICLE 24 (1) of the Customs Union Protocol

East African Community Committee on Trade Remedies:

1. For purposes of this Protocol, there is hereby established an East African Community Committee on Trade Remedies (hereinafter referred to as "the Committee") to handle any matters pertaining to:

(a) rules of origin provided for under the East African Community Customs Union (Rules of Origin) Rules, specified in Annex III to this Protocol;

(b) anti-dumping measures provided for under the East African Community Customs Union (Anti-Dumping Measures) Regulations, specified in Annex IV to this Protocol;

(c) subsidies and countervailing measures provided for under the East African Community Customs Union (Subsidies and Countervailing Measures) Regulations, specified in Annex V to this Protocol;

(d) safeguard measures provided for under the East African Community Customs Union (Safeguard Measures) Regulations, specified in Annex VI to this Protocol;

(e) dispute settlement provided for under the East African Community Customs Union (Dispute Settlement Mechanism) Regulations, specified in Annex IX to this Protocol; and

(f) any other matter referred to the Committee by the Council.

ARTICLE 54 of the Common Market Protocol provides that:

Settlement of Disputes

1. Any dispute between the Partner States arising from the interpretation or application of this Protocol shall be settled in accordance with the provisions of the Treaty.

2. 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 recognised 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.

Held:

1.  Protocols, once validly enacted under Article 151 (1) of the Treaty, become and form an integral part of the Treaty by virtue of the provisions of Article 151 (4).The Court, unlike the Customs and the Common Market  authorities provided for under the impugned Protocols, derives its jurisdiction from Articles 27, 23, 28, 30, 31,32, and 38 of the Treaty, among others, and it is the Judicial Organ of the Community charged, inter alia, with interpretation and application of the Treaty including, as its integral parts, Annexes and Protocols thereto. Its jurisdiction can only be altered by amendment to the Treaty in accordance with Article 150 thereof.

2.  Pursuant to Regulation 6(7) of Annex IX of the Customs Union Protocol, decisions emanating from these mechanisms are final. It is thus clear that when parties submit themselves to a particular dispute resolution mechanism, they also undertake that the decision emanating therefrom will be final except in a case where any party wishes to challenge the decision of the Committee on grounds of fraud, lack of jurisdiction and other illegality. This mechanism, represents a pragmatic approach to Customs Union dispute resolution, is an alternative to the long and often tedious court litigation and does not take away, directly or by implication, the interpretative jurisdiction of the Court

3.  The finality of the decisions of the Committee provided under Article 24(5) of the Customs Union Protocol does not take away the right of parties, including the Committee itself, who would wish to seek for the Court’s interpretation of the Treaty, including the Protocol and Annexes. Should an issue of the interpretation and application of the Treaty, the Protocol itself or any of its Annexes arise in course of the exercise of the Committee’s mandate; nothing would stop an aggrieved party from coming before the Court to seek for authentic interpretation.

4.  The primary responsibility to implement community legal instruments lies with Partner States. As Partner States, by virtue of their being the main users of the Common Market Protocol on a daily basis, it would be absurd and impracticable if their national courts had no jurisdiction over disputes arising out of the implementation of the Protocol. Community law would be helpless if it did not provide for the right of individuals to invoke it before national courts.

5.  It is clear from Article 54 (1) that disputes between Partner States over interpretation and application of the Protocol remain governed by the Treaty, which means that the Court is primarily the one vested with jurisdiction over them.

6.  The dispute settlement mechanism under the Customs Union Protocol and Common Market Protocol do not exclude/oust the jurisdiction of the Court over disputes arising out of their respective interpretation and application.

7.  The mechanisms provided under the Protocols, as the provisions establishing them provide, are mechanisms for the administration of the Customs Union and the Common Market. None of them is a court in the technical sense of being an alternative of the Court. The assertion that the jurisdiction of the Court to interpret, apply and ensure adherence to Protocol provisions was not envisaged by the Protocols and therefore did not or does not exist was, in the Court's view, a misconception.

The Court did not find wholly in favor of the position taken by either party to the Reference. Any submission that the Court lacked jurisdiction over disputes arising out of the interpretation and application and implementation of the Protocols could not be sustained.