| Case Number | APPEAL NO. 2 OF 2015 |
| Summary | The Respondent(the Applicant in the Reference), a member of Chama Cha Demokrasia na Maendeleo (CHADEMA), had in 2012 unsuccessfully sought election as a representative of Tanzania to the East African Legislative Assembly (EALA). He filed an election petition in the High Court of Dodoma and a Reference at EACJ First Instance Division claiming that the elections conducted by the National Assembly of Tanzania violated Article 50 of the Treaty. He also averred that to the extent that Rule 5(5) of Tanzania’s East African Legislative Assembly Election Rules, Third Schedule to the Parliamentary Standing Order created a singular criteria of representation of political parties and the creation of other groups of categories for contestants, such as Opposition Political Parties and Tanzania Mainland contravened the Treaty. Furthermore, by allowing a party without no representation in the Assembly to field a candidate, the Appellant breached the Treaty. In response, the Appellant averred that the Reference had no merit and was res sub-judice. In its decisions, the Trial Court found inter alia that: the doctrine of res-judicata did not apply; that the creation of groups of categories for contestants such as: ‘Opposition Political Parties’ and ‘Tanzania Mainland’ in Rule 5(5) was a violation of the Treaty; and that allowing TADEA, a political party without representation in the National Assembly, to field a candidate was a breach of the Treaty. Subsequently, the Respondent/ Applicant was awarded a quarter costs of the Reference. On appeal, the Appellant averred inter alia that the Trial Court erred when it issued a declaratory order to the effect that, the election of members of EALA on 17th April, 2012 violated Article 50 (1) of the Treaty. And that the Court misdirected itself by holding that, the National Assembly of the United Republic of Tanzania violated Article 50 (1) of the Treaty by formulating Parliamentary Standing Order No. 12 and Rule 5 (5) of the East African Legislative Assembly Election Rules (i.e. Third Schedule to the Parliamentary Standing Order). Furthermore, the Trial Court erred in law by failing to interpret Article 50 (1) of the Treaty for future guidance on the conduct of elections of members of the EALA. The Appellant filed their Supplementary Submissions one day beyond the deadline set by the Court. |
| Respondent | ANTHONY CALIST KOMU |
| Complainant | THE ATTORNEY GENERAL OF THE UNITED REPUBLIC OF TANZANIA |
| Date filed | |
| Countries | Tanzania |
| Keyword | Effect of Treaty amendments , Jurisdiction , Locus standi , Proceedings before National Courts |
| Treaty Article | Article 23 , Article 27 , Article 30 , Article 34 , Article 50 , Article 8 , Articles of EAC Treaty , EALA Election Rules , Rule 5 , Third Schedule to the Parliamentary Standing Orders 2007 Tanzania |
First Instance Judgment
| Verdict | CONCLUSION
Since the decision in Anyang Nyong’o (supra), this Court has, after every election for representatives to the EALA, received complaints from one Partner State or the other. The Court has been consistent in upholding the spirit, tenor, language and intent of Article 50(1) of the Treaty and it behoves upon the National Assemblies of Partner States to do the same. In saying so, we are alive to the unique political and social circumstances of each Partner State including Tanzania but that uniqueness is no excuse for not strictly following the dictates of the Treaty which they, individually, freely entered In the instant case our findings are clear as regards the United Republic of Tanzania. We digress.
DISPOSITION
|
| PDF document | Download the decision as PDF |
| Date delivered | September 26, 2014 |
| Quorum |
Appeal Judgment
| Verdict |
The Court may under Rule 1 (2) of the Rules of the Court, exceptionally consider late written submissions in the interest of substantive justice especially in cases of interest to the Community such as the present case, or where substantial matters such as the question of jurisdiction was to be determined.
2.In order to succeed on a claim for lack of jurisdiction, a party must demonstrate that there is absence of either
jurisdiction ratione personae, locus standi, jurisdiction ratione materiae, or jurisdiction ratione temporis. Even though the Respondent had no locus standi to institute this case, it did into translate to the Court not having the jurisdiction over the subject matter. The architecture of the Treaty allows individuals to institute proceedings of the nature of the present case before national courts (Article 34 of the Treaty). The Respondent rightly filed proceedings in the High Court of Tanzania.
3.The question of the Respondent’s locus standi was triggered by Articles 23 (1), 27 (1), 30 (1) and (3) and 50 (1). Amendments to Articles 23, 27 and 30 in the original EAC Treaty were widely believed to have been the Partner States’ response to the outcome of the Anyang’ Nyong’o case. These amendments eroded the Court’s jurisdiction where cases are introduced by legal and natural persons. The legality of these amendments was addressed by the Court in 2007 in the East African Law Society case and this Court declined to invalidate the amendments.
4.The Respondent’s reliance on the Anyang’ Nyong’o case did not resuscitate his case as treaty amendments limited the standing of legal and natural persons to file certain cases. The wording of Article 30 (3) that “the Court shall have no jurisdiction under this Article...” barred any references by both legal and natural persons where an “Act, regulation, directive, decision or action has been reserved under this Treaty to an institution of a Partner State”. Therefore, the Respondent lacked locus standi to file a Reference.
5.Nevertheless, this Court has not departed from the determination in the Anyang’ Nyong’o case and National courts in Partner States have no choice but to abide by the ruling of the Anyang’ Nyong’o on the sole mode of procuring EALA members which is “elections” by National Parliaments. The election of Members of EALA under Article 50 (1) is to be carried out by the National Parliament and any other mode of appointing members of EALA is a breach of the Treaty. As long as the ruling in the Anyang Nyong’o case has not been departed from by this Court, it would supersede any decision of any National Court to the contrary.
6.Where a case such as this is before a national Court of a Partner State, and a question of interpretation of the Treaty arises, then the national court must refer the question to this Court for interpretation as was held in the Kyahurwenda case, this Court has exclusive jurisdiction on the interpretation of the Treaty and invalidation of Community Acts, directives, regulations or actions.
|
| PDF document | Download the decision as PDF |
| Date delivered | November 25, 2016 |
| Quorum |