| Case Number | APPEAL NO. 2 OF 2019 (MAJORITY JUDGMENT) |
| Summary | This is an appeal against the judgment of this Court’s First Instance Decision dated 2nd July 2019 whereby the Trial Court dismissed the said Reference with no order as to costs and directed that each party bear its own costs. The Appellant is the Attorney General of the Republic of Burundi in his capacity as the representative of the Republic of Burundi. He was in the same capacity the Applicant in the Trial Court. He is represented by Mr. Diomede Vyzigiro and Mr. Pacifique Barangayitse. The Respondent is the Secretary-General of the East African Community. He is represented by Dr. Anthony Kafumbe, the Counsel to the Community. The Intervener is Fred Mukasa Mbidde, a Member of the East African Legislative Assembly (“EALA”). He is represented by Mr. Justin Semuyaba, Mr. Don Deya, and Mr. Nelson Ndeki. |
| Respondent | The Secretary General of the East African Community and Hon. Fred Mukasa Mbidde |
| Complainant | The Attorney General of Burundi |
| Date filed | |
| Countries | Burundi , East African Community |
| Keyword | Costs , EALA , Elections , Legislature |
| Treaty Article |
First Instance Judgment
| Verdict | Issue No.1: Consequently, in so far as EALA (like any other organ of the Community) carries out its functions under the legal and policy framework of the Treaty; the Court is the body adorned with a legal oversight function under Article 23(1) of the Treaty to ensure due compliance with the Treaty in all Community organ's business. To that end, it would be incomprehensible to suggest that Members and officers of EALA, who serve at the behest and in the interests of the Community, cannot or should not be held to account with regard to the fundamental principles and other policy aspirations of the Community. Without belabouring the issue, we do restate the well recognised jurisprudential principle that the grundnorm of any legal system, such as is the Treaty in the EAC body politic, is the apex legal authority from which all primary and subsidiary laws cascade. It is inconceivable, therefore, to portend that the statutory provisions of section 32 would over-ride the express provisions of Articles 23(1) and 27(1) of the Treaty and purport to oust the jurisdiction of the Court. Such an absurdity is not legally tenable. Issue No.2: Rule 111 places a discretionary mandate upon the Court to either have costs follow the event. as is the general rule. or otherwise depart from that procedural norm. The gravamen of the present dispute was determined on legal technicality. the Applicant's evidence having been struck off the Court record and thus obviating the need to put the Respondent to his defence. Given the intrinsic circumstances of this case, therefore. we do exercise our discretion under Rule 111 to decline to grant an award of costs. In the final result. we hereby dismiss the Reference with no order as to costs. Each party shall bear its own costs. It is so ordered. |
| PDF document | Download the decision as PDF |
| Date delivered | July 2, 2019 |
| Quorum |
Appeal Judgment
| Verdict | It is now clear that the Appellant's challenge to the election of the Speaker of the 4th Assembly of EALA has failed in both the Trial Court and in this Court as issue numbers (1) (2) and (3) have all been answered in the negative and we are minded to award the Costs of the Appeal to the Respondent and the Intervener. It is also clear that the cross-Appeal has succeeded, with the result that the Respondent and the Intervener will be awarded their Costs in the Trial Court. The upshot of our consideration of the Appeal and the Cross-Appeal is that (1) The Appeal be, and is hereby dismissed; (2) The Cross-Appeal be, and is hereby allowed; (3) The Order of the Trial Court dated 2014 July 2019 dismissing the Reference with no order as to Costs and directing each party to bear its own costs be, and is hereby set aside and substituted with an Order that “The Reference be, and is hereby dismissed with Costs to the Respondent and the Intervener." (4) The Appellant should bear the costs of the Appeal and the Cross Appeal. IT IS SO ORDERED. |
| PDF document | Download the decision as PDF |
| Date delivered | June 4, 2020 |
| Quorum |