MBIDDE FOUNDATION LTD AND RT. HON. MARGARET ZZIWA v. THE SECRETARY GENERAL OF EAST AFRICAN COMMUNITY & ANOTHER

Case Number	APPLICATION NOs. 5 AND 10 OF 2014 (ARISING FROM REFERENCE NOs 3 AND 5 OF 2014)
Summary
Respondent	Secretary General of East African Community (2) Attorney General of The Republic of Uganda
Complainant	Mbidde Foundation Ltd (2) and Rt. Hon. Margaret Zziwa
Date filed
Countries	East African Community , Uganda
Keyword	EALA , Jurisdiction
Treaty Article	Article 6 , Article 7

First Instance Judgment

Verdict	First and foremost, we are unable to agree with the Applicants that the presentation of the Petition to the Assembly, in itself, constituted an infringement of the Treaty. This procedure is prescribed under Rule 9(4) of the Assembly’s Rules of Procedure. As explicitly stated in the long title thereto, those Rules of Procedure were promulgated under Articles 49(2) and 60 of the Treaty. No material was availed to this Court as would suggest that the Rules per se infringe Treaty provisions. We understood both Applicants’ case to be that the implementation of the said Rules would violate the doctrine of natural justice and, therefore, Article 6(d) of the Treaty, hence this consolidated Application to restrain further implementation thereof beyond the presentation of the petition to the House. Subject to more detailed scrutiny of this contention during the hearing of the consolidated Reference, at this stage we find that the presentation of the Petition to the House was in compliance with Rules duly promulgated under the EAC Treaty and, therefore, in compliance with the said Treaty. Secondly, the removal of the Speaker of the Assembly is a function of the EALA as provided by Article 53 of the Treaty. The procedure for such removal is detailed in Rule 9 of the Assembly’s Rules of Procedure. Article 49(2)(g) of the Treaty does indeed mandate the Assembly to formulate its own rules of procedure, as well as those that pertain to its committees. The Committee on Legal, Rules and Privileges is one such committee. In the instant case, where both Applicants fault the Assembly’s Rules of Procedure, Rule 83 of the said Rules does make provision for the amendment thereof by the EALA. Although both Applicants are members of the said Assembly, there is no indication before us that recourse has been made to such course of action. Similarly, on the question of bias there is no material before us that indicates that the issue has been duly raised before the Assembly and the said body has declined or omitted to address it by recusal from the Committee of Legal, Rules and Privileges of the members perceived to be biased; amendment of the Rules of Procedure to address the perceived bias or, by the Assembly otherwise effecting necessary measures to address the said complaint. In the premises, we find that the incidence of bias has not crystallized so as to give rise to a cause of action under Article 30(1) of the Treaty or invoke the jurisdiction of this Court under the same provision. We do agree with Mr. Kaahwa that provision for the respective mandates of each Organ of the Community is reflective of the renowned doctrine of separation of powers that this Court is enjoined to observe and uphold. Accordingly, whereas the material available to this Court with regard to the perceived bias of the Assembly’s Committee on Legal, Rules and Privileges is neither frivolous nor vexatious; at this stage, without prejudice to the merits of the consolidated Reference, we find that the said material does not prima facie demonstrate an act of Treaty infringement such as would invoke the provisions of Article 30(1) of the Treaty. Having so found, we do not deem it necessary to consider the balance of convenience in this matter. Be that as it may, had we considered the balance of convenience in this matter an important consideration in this balancing exercise would be whether any potential injustice to either party could be adequately compensated for by damages. If the injury likely to be suffered by either party could be quantified financially we would be inclined to grant or refuse the injunction accordingly. For instance, if the injury to the second Applicant may be adequately compensated by damages, this Court would be inclined not to grant the injunction; and similarly if the injury likely to be suffered by the Respondents may be compensated in damages, this Court would be inclined to grant the injunction. The Applicants bore the burden of demonstrating that grant of the injunction was necessary to protect them against irreparable injury. With respect, we are not satisfied that the first Applicant demonstrated any injury it is likely to suffer. The affidavit of one Moses Kyeyune Mukasa is to the effect that the first Applicant seeks to protect Uganda’s rotational interest in the office of the Speaker, as well as the rights of the incumbent Speaker herself, but it does not provide material that demonstrates the injury that party is likely to suffer if the injunction is refused. With regard to the second Applicant, we are mindful of the possible damage to her reputation should the injunction not be granted and she emerges successful in the Reference after her removal from the office of Speaker. This was ably articulated by Mr. John Tumwebaze, although it might have been neater if it had been addressed in pleadings rather than raised in arguments from the Bar. The material availed to us in this application lends credence to the possible reputational damage to the second Applicant, as well as the EAC as an institution. However, whereas we recognize that in certain circumstances reputational injury is difficult to meaningfully compensate by damages; in our considered view such injury is relatively easier to assess and quantify with regard to an individual such as the second Applicant than would be the case in assessing the cost thereof to the future prospects of relatively young but pivotal regional institutions such as the EAC and EALA. Further, weighing the likely inconvenience or damage that would be suffered by the Applicants if the injunction is not granted against the likely inconvenience or cost to the Respondents if it is granted; we take the view that whereas the office of the Speaker is vital to the operations of the EALA and the removal of the holder thereof should never be approached casually or flippantly, in our judgment the first Respondent in his representative capacity as enshrined in Article 4(3) of the Treaty stands to suffer inconvenience with more far reaching repercussions to the entire Community should we grant a temporary injunction, than the second Applicant would suffer should we refuse the injunction. In the result, with the greatest respect, we decline to grant the interim orders sought and do hereby dismiss this consolidated Application. The costs thereof shall abide the outcome of the consolidated Reference. We direct that it be fixed for hearing as a matter of priority. It is so ordered.
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Date delivered	May 29, 2014
Quorum

Appeal Judgment

Verdict
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Date delivered
Quorum