Case Number REFERENCE NO. 2 OF 2018

This Reference seeks to challenge the election of the Speaker of the 4th Assembly of the East Africa Legislative Assembly (hereinafter interchangeably referred to as ‘EALA’ or ‘the Assembly’) on the premise that the procedure adopted by the Assembly flouted provisions of the Treaty for the Establishment of the East African Community (hereinafter referred to as the “Treaty”), as well as the Assembly’s Rules of Procedure on the question of quorum.

The Reference is inter alia premised on Articles 6(d), 7(2), 8(1 )(c), 53(1), 57, 69 and 71(4) of the Treaty, as well as Rules 6 and 12(1) of the Assembly’s Rules of Procedure, and is instituted against the Secretary General of the East African Community (EAC) who is sued in a representative capacity on behalf of the EALA, as provided under Article 4(3) of the Treaty. Following the hearing and determination of Application No.6 of 2018 by this Court, Han. Fred Mukasa Mbidde was admitted as an Intervener in this matter.

At the hearing of the Reference, the Applicant was represented by Mr. Nestor Kayobera and Diomede Vizikiyo; Dr. Anthony Kafumbe and Ms. Brenda Ntihinyurwa appeared for the Respondent, while Messrs Donald Deya, Justin Semuyaba and Nelson Ndeki represented Hon. Fred Mukasa Mbidde (‘the Intervener).

Date filed
CountriesBurundi , East African Community
Treaty Article

First Instance Judgment

VerdictIssue 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.
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Date deliveredJuly 2, 2019

Appeal Judgment

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Date delivered