An Application for Interim Orders has to meet the Common Law Criteria for Grant of Interlocutory Applications
August 2, 2017
Castro Pius Shirima v The Attorney General of Burundi & 6 Others
The East African Court of Justice, Arusha
First Instance Division
Lenaola I., DPJ; Ntezilyayo F. & Jundu A.F., J J
July 6, 2017
Reported by Linda Awuor & Faith Wanjiku
International Law– law of Treaty- Interpretation of the Treaty for the Establishment of the East African Community-fundamental principles of the Community-mutual trust, political will and sovereign equality;co-operation for mutual benefit- whether the 2nd and the 3rd Respondents had violated article 6(a) and (f) of the Treaty on fundamental principles of the community for signing the Economic Partnership Agreement while the rest of the partner states had not-The Treaty for the Establishment of the East African Community, 1999, article 6 (a) & (f)
International Law– Rules of Procedure-The East African Court of Justice – interim orders and directions -whether the Application was incompetent for lack of a proper supporting affidavit contrary to rule 73 (1) of the Rules on interlocutory applications-The East African Court of Justice Rules of Procedure, rule 73(1)
Injunctions- Interlocutory injunctions-principles for grant of interlocutory injunctions - whether the Application met the criteria for grant of an interlocutory injunction-Giella v Cassman Brown
The Application arose from Reference No. 8 of 2016 (Reference) and was premised on the signing and ratifying of the Economic Partnership Agreement (EPA) by the 2nd Respondent (The Attorney General of the Republic of Kenya) which the Applicant alleged was not in the interest of partner states to the East African Community (EAC) as it posed economic risks to the East African region. He also stated that on June 23, 2000, the African, Caribbean and Pacific Group of States and the EU signed the Cotonou Partnership Agreement and committed to negotiate a reciprocal EPA. He added that on the part of the EAC, the negotiations that started in 2002 were carried out under the bloc auspices.
The Applicant stated that on October 13, 2007, the EAC directed its member states to harmonize their positions on the EPA and submit harmonized market access offer to the EU, but that it was not possible to conclude the full EPA negotiations by the set deadline of October 1, 2014; that indeed, negotiations were concluded shortly after the said deadline and the EPA was only initialed on October 14, 2014.
He further pointed out that the East African Legislative Assembly (EALA) had, on several occasions declared that the EPA framework had to be subjected to National Parliaments for approval before signing of the resultant Agreement and added that the EALA had also resolved that the signing of the EPA should be delayed until contentious matters between the negotiating parties to the Agreement were formally and fully resolved.
The Applicant approached the Court under a certificate of urgency whereby he stated that the hearing of the Application was of extreme urgency due to the fact that the 17th East African Community Extra-Ordinary Summit had decided to halt the signing of the EPA for further consultation within a three-month period. He further stated that he stood to suffer irreparable economic loss and serious violation of his rights in case of further signatures and /or ratification to the EPA. The Application was brought under article 39 of the Treaty for the Establishment of the East African Community, 1999 (Treaty) and rules 21(1) (4) and 73 of the East African Court of Justice Rules of Procedure, 2013 (Rules).
i. Whether the Application could fall under the jurisdiction of the Court under article 27 (1) of the Treaty.
ii. Whether the 2nd and the 3rd Respondents had violated article 6(a) and (f) of the Treaty on fundamental principles of the community for signing the EPAwhile the rest of the partner states had not.
iii. Whether the Application was incompetent for lack of a proper supporting affidavit contrary to rule 73 (1) of the Rules on interim orders and directions.
iv. Whether the Application met the criteria for grant of an interlocutory injunction in line with the principles set out in Giella v Cassman Brown.
v. Whether the Application disclosed a cause of action against the 5th Respondent (The Attorney General of the United Republic of Tanzania) despite having not signed the EPA and with no indication to sign it.
Relevant Provisions of the Law
The Treaty for the Establishment of the East African Community, 1999
Article 6 (a) & (f) -Fundamental Principles of the Community
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;
(f) co-operation for mutual benefit.
Article 39-Interim Orders
The Court may, in a case referred to it, make any interim orders or issue any directions which it considers necessary or desirable. Interim orders and other directions issued by the Court shall have the same effect ad interim as decisions of the Court.
East African Court of Justice Rules of Procedure, 2013
Rule 21 (1) (4)-Interlocutory Applications
(1) Subject to sub-rule (4) of this Rule, all applications to the First Instance Division shall be by motion, which shall state the grounds of the application.
(4) A notice of motion shall be substantially in the Forth Schedule.
Rule 73- Interim Orders and Directions
(1) Pursuant to the provisions of Article 39 of the Treaty, the Court may in any case before it upon application supported by affidavit issue interim orders or directions which it considers necessary and desirable upon such terms as it deems fit.
- Under article 27(1) of the Treaty, the Court had jurisdiction over the interpretation and application of the Treaty. When a party approached the Court, invoked specific provisions of the Treaty and alleged that a partner state or an institution of the Community had violated or breached those provisions in the manner set out in article 30(1) of the Treaty, the Court was clothed with jurisdiction to determine such an allegation. The allegation made was, inter alia, that by individually signing the EPA, the 2nd and the 3rd Respondents (The Attorney General of the Republic of Rwanda) had violated article 6(a) and (f) of the Treaty on fundamental principles of the community. That allegation was sufficient to cloth the Court with jurisdiction to determine the Reference and the Application, the merits or demerits of either of them notwithstanding.
- The Applicant had moved the Court seeking in essence a temporary injunction to restrain some EAC partner states, including the 5th Respondent, from signing the EPA, alleging that such an action violated article 6 (a) and (f) of the Treaty. In addition, the 17th Extra-ordinary EAC Summit of Heads of State, seized of the matter, had decided to hold the signing of the EPA pending further consultations on the subject. It was clear from the foregoing that there was a live issue to be determined as to whether the remaining partner states, the 5th Respondent included, could be stopped from signing the EPA pending the determination of the aforesaid Reference.
- The 5th Respondent had alleged that the Applicant’s supporting affidavit contained a falsehoodas it deposed therein that the 4th Respondent (The Attorney General of the Republic of South Sudan) had participated in the EAC Heads of State Summit of June 3, 2010 while the 4th Respondent by that date had not even attempted to be a party to the Community, and that for that reason, the Affidavit was incompetent and should have been struck out. Having been so struck out, the Application would then be rendered incompetent because it would not then be accompanied by an Affidavit contrary to rule 73 of the Rules on interim orders and directions. Such an action would not be justified. It was upon the Court to take whatever facts it deemed relevant in determining the Application before it and ignore what was of no use in doing so. The whole Affidavit was not the one that was said to be clothed with falsehood, but one line of it. Expunging that one line from the record would not therefore have invalidated all other facts deposed to and in the event, there was no reason to strike out the entire Affidavit as prayed. The Application would therefore be addressed in its proper context.
- The conditions required for the Court to grant an interlocutory injunction had previously been settled following an approval of the landmark case of Giella v Cassman Brown & Co. Ltd. The three-part test is therefore that:
a) An Applicant must show a prima facie case with a probability of success;
b) An interlocutory injunction will not normally be granted unless the Applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages;
c) If the Court is in doubt of the two above principles, it will decide an application on the balance of convenience.
- The Applicant alleged that the signing of the EPA by the 2nd and 3rd Respondents contravened the Treaty and was urging the Court to issue an interlocutory injunction stopping other EAC partner states from signing it. However the EPA needed ratification by all parties for it to enter into force. Having heard all the parties, that issue was not frivolous and warranted interrogation by the Court. There was a triable issue within articles 27 and 30(1) of the Treaty and in addressing the question whether the Court should or not grant the orders sought by the Applicant.
- The Applicant’s Agent was asked to clarify the nature of injury in issue if the EAC partner states that had not signed the EPA went on to sign it as he alleged that the Applicant allegedly stood to suffer irreparable economic loss and serious violation of his rights under the Treaty. He contended that the injury should be considered, not at an individual level, but at a regional level. It was his further contention that the way some partner states had acted individually in signing the EPA was harmful to the EAC and to the East African economy. When pressed to expound on the irreparable economic loss and the violation of rights that the Applicant stood to suffer, the Agent was unable to make the link between the impugned signing of the EPA and the alleged irreparable harm that the said signing would cause. The Applicant failed to establish that he would suffer an irreparable injury that could not be compensated by an award of damages if the injunctive order sought was not granted.
- In view of the decision of the 18th Summit of Heads of States held in Dar-es-Salaam on May 20, 2017 stating that the remaining partner states that had not signed the EPA were not in a position to do so pending clarification of the issues they had identified in the Agreement, it appeared that there was no harm to the Applicant if the injunctive order sought was not granted. It was not necessary to carry out the test of balance of convenience as it was clear that the injunctive order sought was not warranted.
- The Applicant prayed for an order directing the 2nd and 3rd Respondents to restrain from undertaking any pending procedures and/or processes over the EPA until a final decision in the Reference aforesaid was delivered in respect of the two partner states who had already signed the EPA, one having even ratified it. No explanation at all was given and that fact precluded the Court from issuing any such restraining orders.
- The Applicant also sought an order directing the 7th Respondent (The Secretary General of the East African Community) to withdraw forthwith from any negotiations initiated with the EU in view of the 17th Extra-ordinary Summit decision until a final decision on the Reference was delivered. The EPA negotiations were concluded in October 2014 and therefore, such an order could not be granted as the negotiation phase stood as closed.
Application dismissed; Costs of the Application to abide the outcome of Reference No.8 of 2016.