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Kenya Law / Blog / Case Summary: Time limitation on institution of proceedings under the Treaty expedites trial process as opposed to clogging justice.

Time limitation on institution of proceedings under the Treaty expedites trial process as opposed to clogging justice.

Steven Deniss v The Attorney General of the Republic of Burundi & 5 Others

East African Court of Justice

Reference No. 3 of 2015

Monica K. Mugenyi, Isaac Lenaola, Faustin Ntezilyayo

March 31, 2017

Reported by: Linda Awuor & Enock Amolo

Download the Decision

International Law-Law of the Treaty-Fundamental Right-Right to access justice-whether the two months’ time limitation under article 30(2) of the Treaty was a clog to access to justice-Treaty for the establishment of East African Community, article 30 (2).

International Law– law of Treaty-interpretation of the Treaty for the Establishment of the East African Community- East African Court of Justice -reference by Legal and Natural Persons-time limit for institution of references-whether the Reference was time-barred for having been filed past the two month limit under article 30(2) of the Treaty-Treaty for the Establishment of the East African Community, article 30(2)

International Law-Law of the Treaty-East African Community – Secretariat – functions of the secretariat-whether the Secretary General failed in his responsibility to ensure the achievements of the creation of peaceful co-existence and development of the community objectives-The Treaty for the establishment of East African Community, article 71(1).

Words and phrases – meaning of the term admissibility-the quality or state of being allowed to be entered into evidence in a hearing, trial or other official proceeding- Black’s Law Dictionary 8th edition page 50

Brief facts

The Applicant was a resident of United Republic of Tanzania. He alleged to have been shot by Tanzanian government agents who forcefully evicted him from Kagera region of Tanzania to Rwanda. He alleged that during the operation dubbed ‘Kimbunga’, he lost his property. The activities of the Tanzanian agents of shooting and evicting him contributed to the loss of his property which was a violation of his rights.

He alleged that he was unable to challenge such violation due to the provisions of article 30 (2) of the Treaty for the establishment of East African Community (Treaty) which had a two months’ time limitation for institution of the proceedings. He alleged that the provision of the Treaty was a hindrance to the citizens’ access to justice, leaving victims of Treaty violation without redress and relief at the altar of convenience and technicalities.

Despite seeking for legal advice from East African Law Society on possible remedies, he was informed that by fact of express mandatory provision of article 30 (2) of the Treaty, his claims were time-barred and that the Secretary General of the East African Community failed in his duty to advice Partner States to rectify the anomaly.

 Issues

(i) Whether the Applicant’s violation claims were admissible before the Court.

(ii) Whether the process of introducing article 30(2) of the Treaty which provided for time limitation was illegal and ought to be rectified.

(iii) Whether the two months’ time-line denied access to justice, or rendered disproportionate access to justice against individuals in favour of Partner Parties as provided for in article 30(2).

(iv) Whether 2 months limitation provided for under article 30 (2) of the Treaty obstructed the jurisdiction of the Court.

(v) Whether the Secretary General failed in his responsibility to achieve any of the objectives of the Treaty including creation of peaceful co-existence and condition favourable for the development of community objectives.

Relevant Provisions of the Law

Treaty for the establishment of East African Community

Article 6-Fundamental Principles of the Community which included; mutual trust, peaceful co-existence, peaceful settlement of disputes among other principles

Article 7- Operational Principles of the Community

Article 8 (1) - General Undertaking as to Implementation

The Partner States shall plan and direct their policies and resources with a view to creating conditions favourable for the development and achievement of the objectives of the Community and the implementation of the provisions of this Treaty

Article 30 (1) - 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 this Treaty.

Article 30 (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

Article 71(1) (c) - Functions of the Secretariat

The Secretariat shall be responsible for the strategic planning, management and monitoring of programmes for the development of the Community

Held:

1. The Court was able to properly interrogate the legality of an amendment to the Treaty; it was also able to determine the questions of whether any action of a Partner State or an institution of the community was a violation of the Treaty. However, it could not determine the alternative prayer by the Applicant, by judicial fiat, order that an amendment ought to be effected in enlarging the time limit under article 30(2) nor could it order that it should be vested with jurisdiction to enlarge time under that article. It could only interpret and apply such provision and address jurisdictional objections based inter alia on the ratione temporis or personae inapplicability. Amendments to the Treaty were therefore matters outside the jurisdiction of the Court. The Jurisdiction was set out in articles 23, 27 and 30 (1) of the Treaty for the establishment of East African Community (Treaty). The articles provided that the court had the Jurisdiction to ‘interpret’ and ‘apply’ the Treaty and to determine whether any Act, regulation, directive, decision or action of a Partner State or an institution of the Community was unlawful or was an infringement of the Provisions of the Treaty. In undertaking that duty, the Court was enjoined to adhere to the Law at all times.

2. Article 30 (1) of the Treaty granted locus standi to any person who was resident in a Partner State to refer a matter to the Court for adjudication. The Applicant claimed to be a resident of the United Republic of Tanzania who was apparently resident in the Republic of Rwanda, and therefore he met the jurisdictional test of ratione personae (the rule of law that only a state that is a party to an international treaty can take part in international dispute resolution process)

3. The Applicant’s case clearly raised a matter for Treaty interpretation, the purpose of which was to interrogate the alleged inconsistencies and/or contradictions. It invoked the Court’s interpretative mandate as was summed up in article 27(1) of the Treaty and dully satisfied the jurisdictional ingredient of ratione materiae (subject-matter). It raised a cause of action, contrary to the assertions of the Respondents. The Applicant’s case met all the jurisdictional ingredients outlined in The Attorney General of United Republic of Tanzania & Anthony Calist Komu, Appeal No. 3 of 2015 hence the Court was satisfied that it had jurisdiction to entertain the matter.

4. On the question of applicability of the principle of res judicata, the doctrine was meant to ensure that parties and courts were not burdened with multiple resolutions of the same dispute, between the same parties on the same subject matter, before the same Court and which issue had previously been determined. Case Law on the subject therefore showed that res judicata was recognized as a binding rule, which precluded the re-litigation of the settled dispute. The Reference inter alia sought to invalidate article 30 (2) on the premise that its contents were an impediment to access to Justice or made disproportionate access to justice, that issue was never before the Court and was therefore never conclusively determined. The principle of res judicata, as understood in law could not be properly applied to the challenge of the substance of article 30 (2) which matter was in issue.

5. On the question of admissibility, it was a matter of evidence. It was the quality or state of being allowed to be entered into evidence in a hearing, trial or other official proceeding as per Black’s Law Dictionary. Admissibility of a dispute in general sense however referred to many things including jurisdiction and existence of a cause of action and in the context of the Reference, it was sufficient.

6. Time limitation in article 30(2) was intended to facilitate the expeditious realization of the community’s objectives as detailed in article 5(2) of the Treaty by forestalling open-ended avenues for litigation that could have derailed the integration process. The spirit and letter of the Treaty were well served if such an expedient approach was equally applied to the Partner States and the Secretary General of the East African Community.

7. On whether the Secretary General failed in his responsibility to ensure the achievements of the creation of peaceful co-existence and development of the community objectives, there was no specific complaint made that the Secretary General had failed to discharge his mandate in any manner relevant to the Applicant’s chief complaint. The nearest plea on that issue was the blanket statement that the Respondents who were charged with the responsibility of ensuring achievement of the objectives of the Treaty failed in their responsibility under articles 4(3), 5,6,7,8,27,29,30,67,71,127 and 50. There was no specific complaint made with regard to any Respondent and not a single statement was made in the Supporting Affidavit of the Applicant sworn as to how the Secretary General specifically failed in his mandate under article 71 of the Treaty that explained the function of the Secretariat. Further evidence or even a complaint against a respondent could never be introduced in Submissions as the Applicant did. It was to be properly pleaded first then proved at the hearing.

8. The generalized invocation of article 71 of the Treaty and imputation of failure by the Secretary General in his mandate was a misguided approach to litigation and that issue was answered in the negative.

9. Since article 30(2) did not negate the principle of the Rule of Law but rather regulated the time frame within which the said principles were litigated, it was not possible to declare that the 60 days limitation period was restrictive to access the Court contrary to the principle set out in article 6(d) and 7(1) (a) of the Treaty. Similarly, it was impossible to declare that article 30(2) was null and void.

10. Regarding orders to effect amendment to article 30(2) of the Treaty for the 2 month limitation, the Court had no jurisdiction to make orders since that would have meant the amendment of the Treaty and such prayer failed.

11. On whether article 30(2) clogged the jurisdiction of the Court to give Orders, it was suggested that the relevant organs of the East African Community (EAC) to relook into the provision of article 30(2) and in their wisdom and mandates remove any apparent disparities on the time limit within which to access Court.

Reference dismissed

Parties to bear their costs

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