CALIST ANDREW MWATELA & 2 OTHERS v EAST AFRICAN COMMUNITY

Case Number REFERENCE NO. 1 OF 2005
Summary

In November 2004, four Private Member’s Bills were pending in the East African Legislative Assembly. During the 9th meeting of the Council of Ministers held on 24th November 2004, Council decided that policy-oriented Bills with implications on the Partner States’ sovereign interest and budgetary aspect of the Community should only be submitted to the Assembly by the Council and not through Private Member’s Bills. Council then assumed responsibility for the Bills namely: the East African Community Trade Negotiations Bill (2004); The East African Community Budget Bill ; The East African Immunities and Privileges Bill ; and The Inter- University Council for East Africa Bill and requested the Assembly to postpone debate on the Trade Negotiations Bill pending the conclusion of a study into its implications. Meanwhile, the Inter-University Council Bill was submitted to the Sectoral Council on Legal and Judicial Affairs for legal input.

After review, the Sectoral Council decided that protocols, within the meaning of Article 151 of the Treaty, rather than legislation enacted by the Assembly, were sufficient to provide for the Inter-University Council and for immunities and privileges for the Community and it advised Council to withdraw the two Bills from the Assembly.

The Applicants who were members of EALA brought this Reference challenging the validity of the meeting of the Sectoral Council on Legal and Judicial Affairs held on 13th to 16th September 2005 and the decisions taken in relation to Bills pending before the East African Legislative Assembly. They claimed that the report of the Sectoral Council meeting was null and void ab initio and all decisions, directives and actions contained in or based on it are null and void.

They also questioned the lawfulness of the decisions of the Council and whether they were binding on the Assembly
RespondentEAST AFRICAN COMMUNITY
ComplainantCALIST ANDREW MWATELA & 2 OTHERS
Date filed
CountriesEALA , East African Community
KeywordPrivate Members Bill , Prospective annulment , Treaty interpretation
Treaty ArticleArticle 13 , Article 14 , Article 15 , Article 151 , Article 16 , Article 59 , Articles of EAC Treaty , Rule 1 , Rule 20 , Rules of Procedure 2004

First Instance Judgment

Verdict
  1. The Court held that the establishment of the Sectoral Council was inconsistent with the provisions of Article 14(3) (i) and the meeting of 13th to 16th September 2005 was not lawful meeting and that the decisions of the meeting were ipso facto invalid.
  2. Since the purported Sectoral Council had been in place from 2001 and had made decisions, the doctrine of prospective annulment was applied and the Court’s decision to annul the Sectoral Council would not have retrospective effect.
  3. The Council had no power to take over Bills without observing the Assembly Rules and decisions of the Council had no place in areas of jurisdiction of the Summit, Court and the Assembly.
  4. The Assembly’s permission must be sought to withdraw a Bill irrespective of whether the Bill in question had been a Private Member’s Bill or a Community Bill.
  5. As a creature of the Treaty, the Assembly can only have competence on matters conferred upon it by the Treaty. The Assembly has no power to legislate on matters on which the Partner States have not surrendered sovereignty.
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Date deliveredOctober 10, 2006
Quorum

Appeal Judgment

Verdict
PDF document
Date delivered
Quorum