Case Number APPEAL NO. 2 OF 2017
Summary

Following the Appellant’s removal as Speaker of the East African Legislative Assembly (EALA) on 26th November 2014, the Appellant filed several references including Amended Reference No. 17 of 2014, contesting the legality of her removal and seeking declarations inter alia that: the sitting of the Assembly on 26th November 2014, without the Speaker, violated multiple provisions of the EAC Treaty including Articles 53 and 56 and the Rules of Procedure of the EALA; subsequent sittings not presided over by the elected Speaker were ultra vires and of no legal consequence; and that the Committee on Legal, Rules and Privileges was improperly constituted as a majority of its members were also complainants and witnesses against the Applicant and their participation breached the rules of natural justice. The Appellant also sought: general, exemplary and special damages plus an order for reinstatement.

In its judgment, the Trial Court found that: there was no legal basis for the suspension of the Speaker; that the election of a Temporary Speaker contravened Article 56 of the Treaty; that by presiding over a House whose sole business was the removal of the Speaker, the Appellant breached Rule 9(6) of EALA’s Rules of Procedure; and that the proceedings and findings of the Committee on Legal, Rules and Privileges, breached the Treaty, Rule 9 of the Assembly’s Rules of Procedure plus the rules of natural justice. However, the Trial Court declined to reinstate the Appellant to office and to award damages. Full costs were also declined as the Appellant had flouted EALA’s Rules of Procedure.

Being partially aggrieved, the Appellant filed this appeal averring that: the Trial Court erred in law in holding: that the Court had no mandate under the Treaty to reinstate the Appellant or to award special and general damages; the Appellant breached Rule 9(6) of the Assembly’s Rules of Procedure by presiding over the proceedings of the Assembly for her removal from office on 1st April and 4th June 2014; and that despite finding that the Appellant had partly succeeded in the Reference only partial costs were awarded. Additionally, the Appellant averred that reinstatement was available as a remedy and that the doctrine of separation of powers must give way to the principle of checks and balances in appropriate cases.

The Respondent averred that reinstatement as a remedy was not available to the Appellant, and given the doctrine of separation of powers, to grant it would be a usurpation of the Assembly’s powers and an imposition of a Speaker not appointed by the House.

RespondentTHE SECRETARY GENERAL OF THE EAST AFRICAN COMMUNITY
ComplainantHON. DR. MARGARET ZZIWA
Date filed
CountriesEast African Community
KeywordCompensation , Costs , EALA , Jurisdiction , Natural justice , Separation of powers
Treaty ArticleArticle 23 , Article 27 , Article 3 , Article 31 , Article 33 , Article 34 , Article 35 , Article 35 A , Article 36 , Article 38 , Article 4 , Article 53 , Article 56 , Article 6 , Articles of EAC Treaty , Draft Articles on the Responsibility of International Organizations 2011 , Rule 9 , Rules of Procedure 2013

First Instance Judgment

VerdictAs we take leave of this Amended Reference, we are constrained to observe that it did illuminate the vitality of respect for and submission to the rule of law in the conduct of public affairs. To that end, we deem it our duty to and do hereby propose that it is a basic expectation that all holders of public office would discharge their duties with respectful regard for designated processes; demonstrable deference to legal propriety and due diligence, and a reasonable disdain for impunity, partiality and bad faith. The trampling roughshod over designated legal processes and basic principles of natural justice would certainly not, in our most considered view, engender an environment conducive to harmonized regional integration in the EAC. The Reference has also brought to the fore the need for EALA to relook at its House and Committee procedural rules, and address lacunas that could cause confusion in its legislative function. In the final result, we do allow the Amended Reference in part with the following Orders: a. A declaration doth issue that the purported sitting of the Assembly on 26th November 2014 without the elected Speaker of the Assembly violated Article 56 of the Treaty; was unlawful, procedurally wrong and of no legal consequence. b. A declaration doth issue that the Committee on Legal, Rules and Privileges was improperly constituted for purposes of the Speaker's removal and constituted a breach of the Rules of natural justice owing to demonstrable bias, and accordingly the report arising therefrom is null and void. c. A declaration doth issue that grounds 1.1, 1.2, 2.1, 2.2, 2.3, 2.5, 3.4 and 3.5 do correspond to grounds of misconduct under Article 53(3) of the Treaty. d. Each Party shall bear its own costs. It is so ordered.
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Date deliveredFebruary 3, 2017
Quorum

Appeal Judgment

Verdict
  1. The Court is the guardian of the Treaty and it is the Court’s duty to ensure that the Partner States and other duty bearers march in step with the Treaty and any breaches thereof are remedied as may be appropriate in the circumstances.
  2. The Appellant’s conduct prior to such removal was legally wholly irrelevant as it could not in law be a defence or justification for the alleged violation of the Treaty by the Assembly. Furthermore, such conduct was not and could not be pleaded as a basis for any counter-claim by the Respondent as the Rules do not contemplate any counterclaim in a Reference. The introduction by the Respondent of the Appellant’s conduct with respect to the Assembly’s proceedings in April and June 2014 was a red herring that resulted in waste of precious judicial time in both this Court and the Trial Court.
  3. The full effectiveness of EAC Laws including the Treaty and the protection of the rights granted by such laws requires the Court to grant effective relief through appropriate remedies in the event of breach of such laws. Otherwise such laws would be no more than pious platitudes. Articles 23(1) and 27(1) of the Treaty do not confine the Court’s mandate to mere Treaty interpretation and the making of declaratory orders but confer on the Court, being an international judicial body, the authority to grant appropriate remedies to ensure adherence to law and compliance with the Treaty.
  4. Treaties do not usually prescribe the international responsibility of parties thereto or the consequences of breach of that responsibility. Depending on whether the violation of international responsibility complained of was by a state or an international organization, the principles of law applicable are found in laws of state responsibility or the responsibility of international organizations. The East African Community is created
by the Treaty and is an international organization and possesses international legal personality. On the basis of Articles 3, 4, and 6 of Draft Articles on the Responsibility of International Organizations, with Commentaries, 2011, EALA’s removal of the Appellant as Speaker was an internationally wrongful act which is attributable to the Community and entails the Community’s international responsibility.
  1. The Treaty, having provided a right, it is for the Court to provide such remedies as may be appropriate in each individual case. The legal consequences to be visited upon the Community in consequence of a breach of its international obligation to a person resident in a Partner State may, in appropriate cases, include cessation, reparation, which may take the form of restitution, or compensation, satisfaction, or similar, or other remedies.
  2. The actions complained of by the Appellant are attributable to the Community and the functional independence of any offending organ from the other organs is immaterial. EALA violated Article 56 of the Treaty in removing the Appellant from office and that conduct is attributable to the Community in international law, the Community cannot invoke the doctrine of separation of powers to bar the Court from ordering the Appellant’s reinstatement on the basis that matters of election and removal of the Speaker are within one of its organ’s exclusive mandate. The doctrine of separation of powers cannot in either international law or internal law shield any Community organ or institution from judicial scrutiny for any transgression of the Treaty or other Community laws.
  3. The Trial Court erred in law in holding that it did not have the mandate to reinstate the Appellant. However, it was a matter of public knowledge and was common ground that the Assembly of which the Appellant could have been reinstated came to an end in June 2017. In those circumstances, reinstatement was moot at the time of the Trial Court’s Judgment and the Court would be acting in vain to so order.
  4. The remedy of compensation, damages in internal law, is very firmly established in international law, and is available for the Community’s breach of its Treaty obligations where a claimant establishes that the Act, regulation, directive, decision or action of the Community complained of has caused such claimant a loss which is financially assessable. To the extent that the Trial Court declined to award damages on the basis that it could not find justification in its interpretative jurisdiction of the Treaty under Articles 23(1) and 27(1) or the Rules, it misdirected itself and erred in law.
  5. There is no difference in principle between the action of unlawful dismissal of an employee and unlawful removal from office of an elected official. Both are legal wrongs remediable by compensation. As the gravamen of the Appellant’s case is unlawful removal from office, the compensation should cover the financially assessable loss. The Appellant’s removal from office as Speaker was breached of Article 56 of the Treaty and this entailed compensation for consequential loss.
  6. Assessment of compensation is a factual inquiry and the Trial Court erred in law by omitting to discharge its mandate of assessing compensation due to the Appellant. While this the case should have been remitted back to the Trial Court for assessment of compensation, given the convoluted nature of the litigation and the delays that might ensue before the final disposal of the matter, the Court assessed the financial loss suffered by the Appellant as US$ 114,000.
  7. As a regional international Court, this Court has jurisdiction and discretion to award interest on compensation. Interest on the liquidated claim was granted at the rate of US$ six percent per annum payable from the date of filing of the Amended Reference until payment in full.
  8. Costs are in the discretion of the court; in exercising such discretion, the Court bears in mind that costs follow the event and that a successful party may only exceptionally be deprived of costs depending on the particular circumstances of the case such as the conduct of the parties themselves or their legal representatives, the nature of the litigants, the nature of the proceedings or the nature of the success.
  9. The Trial Court was not certain that the Appellant’s conduct of presiding over the Assembly’s sitting on 1st April and 4th June 2014 triggered the events leading to her removal from office. The alleged conduct was a red herring and was an irrelevant factor. The Trial Court, in taking it into account in exercising its discretion, thus exercised its discretion improperly.
  10. The Trial Court exercised its discretion improperly, in depriving a successful party of its costs. This was a complex matter, cutting a new path in Treaty interpretation, application and compliance. The Appellant was entitled to costs both in this Court and in the Trial Court. Since the Appellant was represented by Counsel
from two different law firms in Kampala, Uganda, the Court certified the case as appropriate for costs for two Counsel to be awarded.
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Date deliveredMay 25, 2018
Quorum