| Case Number | APPEAL NO. 2 OF 2019 (DISSENTING JUDGMENT) |
| Summary | I opted to differ with the judgment which the majority of the Court delivered in respect of this Appeal. The Appeal is against the Judgment of this Court’s First Instance Division, dated 2nd July 2019 in Reference No.2 of 2018 whereby the Trial Court dismissed the Reference and ordered each Party to bear its own costs. |
| Respondent | The Secretary General of the East African Community AND Hon. Fred Mukasa Mbidde |
| Complainant | The Attorney General of the Republic of Burundi |
| Date filed | |
| Countries | Burundi , EALA , East African Community |
| Keyword | EALA |
| 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 | The Appeal is allowed. Accordingly, the election of the Speaker of the 4th Assembly was conducted in violation of Articles 57 (1) of the Treaty read together with Rule 12 (1) of the Rules of procedure of the Assembly, for want of the requisite quorum. The cross Appeal is disallowed with no order to costs. Each Party and Intervener shall bear its own costs. It is so ordered |
| PDF document | Download the decision as PDF |
| Date delivered | June 25, 2020 |
| Quorum |