Coming up for Delivery of Ruling: On the 27th day of march, 2026
Filed on: the 14th day of August 2020.
Under Articles: 6(d),7(2),8(1)(c) ,27(1), and 30(1) of the Treaty, Articles 2,3(1) ,3(2),7(1) (a),71) (c), 10 and 13 of the African Charter on human and Peoples` Rights;
Rules: 1 and 25 of the East African Court of justice rules of procedures, 2019.And all enabling provisions of law.
Subject matter: The written laws (Miscellaneous Amendments) Act, No.03 of 2020 (“the impugned Act”).
Summary:
This Reference was brought by the Applicant against the Respondent on grounds that the written laws (Miscellaneous Amendments) Act, No. 03 of 2020(hereinafter”): the impugned Act”) was passed by the National Assembly of the Respondent was assented to by the President of the Respondent and was published in the official Gazette.
The impugned Acts under section 4(2), (3) and (4) attempts to amend the constitution without following the due procedure, which violate the Treaty. The impudgned Amemdments also violates the African principles of “Ubuntu” ie, that we are one and we stand in solidarity with one another which is also an underlying value of the Constitution of the Respondent and also the EAC Treaty.
Under Section 7 of the impugned Act is an amendment to Section 4 of the Basic Rights and Duties Enforcement Act (“hereinafter BRADEA”) CAP. 3(R.E.2019), which has the following provisions: without prejudice to the provisions of the commission for Human Rights and Good Governance Act, relating to powers of the Commission to institute proceedings, an application under subsection (1) shall not be admitted by the High Court unless its accompanied by an affidavit stating the extent to which the contravention of the provisions of Articles 12 to 29 of the constitution has affected such person personally” and the person shall abide by the provisions of the Article 30(1) of the constitution”; where redress is sought about the president, vice president, prime Minister, the Speaker, deputy speaker or chief justice for any act or omission done in the performance of their duties, a petition shall only be brought against the Attorney General” and a Petitioner shall, prior to seeking redress under this Act, exhaust all available remedies under any other written laws.
By requiring that a litigant be personally affected, the amendments listed immediately above will inevitably lead to an unjustified restriction on access to justice through the curtailment of public interest litigation.
Additionally, the public interest litigation is a crucial element of legal representation which, when denied; has the repercussion of curtailing the principles of access to justice, equality before the law, democracy, rule of law, accountability, transparency and good governance, which the Respondent has committed to uphold, under its commitments under the Treaty for the Establishment of the East African Community amongst other international legal instruments that it has ratified.
Additionally, the reference concerns a blatant violation of Articles 6(d),7(2) and 8(1) (c) of the Treaty; and Articles 3(1),(2),7(1),(a),(c) and 10 of the African Charter on Humans and Peoples` Rights and other international instruments to which the Respondent is a party.
The Applicant pleads for the following prayers and orders against the Respondent:
A declaration that the Amendment BRADEA violates; Articles 6(d),7(2) and 8(1) (c), it also violates Articles 2,3(1), (2) and 7(1), 10, and 13 of the African Charter. It also violates the rule of law by violation of Articles 4,13(1) to (4),(6), (a),18 (d),21(2),26(1),(2),107A (1) ,(2) (b) and (2) (e) of the Constitution of the Respondent.
A declaration that the Amendments to Section 4 of BRADEA have the effect of banning and / curtailing public interest litigation which in turn affects the right to legal representation, access to justice and equality before the law.
A declaration that the amendments violate principles of good governance, democracy and rule of law by amending the constitution illegally and procedurally.
Applicants also pray for a declaration that the Amendment violates the principle of “ Ubuntu”.
A declaration that the amendments violate the right to freedom of association.
A declaration that the amendments violate the principle of non-discrimination as it disproportionately affects persons with disabilities and minors.
A declaration that the Amendments curtail the right to access justice through one`s chosen means of redress.
And finally; An Order directing the Respondent State with immediate effect to take all reasonable steps within the earliest time possible from delivery of the judgement to repeal or amend the amendments to bring them in conformity with the fundamental and operational principles of the EAC Treaty;
This is a document produced by the Registry to assist in understanding forthcoming matters before the Court. It does not bind the Court. For authoritative Decisions, Judgments and general information about the Court please visit https://www.eacj.org Contact: Registrar, East African Court of Justice, P.O. Box 1096 Arusha, Tanzania Tel: +255 27 2506093 Fax: +255 27 27 2509493 Email: eacj@eachq.org