Case Number REFERENCE NO. 8 OF 2013
Summary

A.    BACKGROUND

  1. The Reference filed by the Applicants has been prompted by the action of the Republic of South Sudan of applying to join as a member of the East African Community on 11th November, 2011. They allege that the Partner States are in their final stages of admitting the said country as a member of the East African Community and that the decision was slated on 4th April, 2014 as per the Statement by Hon. Shem Bageine, Chairperson of the East African Council of Ministers and the Minister of State for East African Affairs, Uganda, when he gave updates on the East African Community Affairs on 9th September, 2013 in Kampala.
  2. The Applicants are opposing the application of the Republic of South Sudan to join the membership of the East African Community on the grounds stated herein below in the Applicants ‘case.
  3. The Applicants are therefore seeking the following reliefs:

“ a) A declaration that the Republic of South Sudan is not a fit and proper country to be granted membership in the East African Community; and

  1. b) An order that the Respondents should not grant membership to the Republic of South Sudan in the East African Community.”
RespondentAG OF THE REPUBLIC UGANDA, AG OF THE REPUBLIC KENYA,AG OF THE REPUBLIC TANZANIA,AG OF THE REPUBLIC RWANDA,AG OF THE REPUBLIC BURUNDI,SECRETARY GENERAL OF THE EAST AFRICAN COMMUNITY
Complainant1. PATRICK NTEGE WALUSUMBI 2. DAN SSENGA 3. MOHAMMED WAIGA
Date filedOctober 10, 2013
CountriesBurundi , East African Community , Kenya , Rwanda , Tanzania , Uganda
Keyword
Treaty ArticleArticle 23 , Article 27 , Article 7 , Article 8

First Instance Judgment

Verdict
  1. We have carefully considered the arguments of the Parties above against the law in reference. We find nothing in Article 3(2) of the Treaty that would warrant the restrictive interpretation posited by the Applicants. On the contrary, Article 3(2) explicitly provides for negotiations thereunder to be undertaken ‘upon such terms and in such manner’ as the Partner States may determine.  We have established that the Protocol was promulgated under Article 3(6) of the Treaty to determine the manner in which admission of a foreign country into the Community would ensue.  Article 3(3) thereof designated the Summit to make the decision as to such admission.  The designated Organ (the Summit), on 30th November 2012, acting within its discretionary mandate, issued a directive for negotiations to commence with the Republic of South Sudan.  It thus executed its mandate thereunder.  If, for argument’s sake, the Summit was willing to have the alleged human rights violations considered as negotiation points, that would clearly be its prerogative.
  2. In any event, we are not persuaded by the contrary arguments advanced by the Applicants. In our considered view, reference to the different types of ‘membership’ in Article 3(2) denotes the possible levels of association with the EAC that are available to foreign countries. Indeed, the requirement in Article 4(1) of the Protocol for clarity as to the type of membership sought by such foreign country would serve to buttress this interpretation of Article 3(2) of the Treaty.
  3. In the result, we are satisfied that the process under scrutiny duly complied with the Treaty and Protocol; the directive for the commencement of negotiations was grounded in the Summit’s discretionary mandate as enshrined in Article 3(2) of the Protocol, and it did not contravene Articles 6(d), 7(2) and 8(1)(c) of the Treaty as alleged. We would, therefore, answer this issue in the negative.
ISSUE NO.4: WHETHER THE APPLICANTS ARE ENTITITLED TO ORDERS SOUGHT
  1. The Applicants seek the following Orders:
  2. A Declaration that the Republic of South Sudan is not a fit and proper country to be granted membership in the East African Community; and
  3. Orders that the Respondents should not grant membership to the Republic of South Sudan in the East African Community.
  4. On the other hand, the Respondents oppose the reliefs sought by the Applicants on the grounds that a Declaration that the Republic of South Sudan is unfit for membership of the Community would be tantamount to the Court usurping the role of the Summit.
DETERMINATION ON ISSUE NO.4
  1. We have carefully considered the submissions of all the Parties on this issue. We find Article 3(2) of the Treaty and Articles 3(3) and 4(6) of the Protocol very pertinent thereto in so far as they address the mandate of the Partner States and Summit with regard to admission of a foreign country to the Community. The prayers sought by the Applicants would appear to require this Court to pronounce itself on a matter explicitly reserved for the above Organs of the Community.  In any event, having decided the preceding issue in the negative, the prayers sought by the Applicants are not tenable.
CONCLUSION
  1. In conclusion, the Reference is hereby dismissed with costs to the Respondents. It is so ordered.
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Date deliveredFebruary 27, 2015
Quorum

Appeal Judgment

Verdict
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Date delivered
Quorum