THE EAST AFRICAN LAW SOCIETY & 4 OTHERS v THE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA & 3 OTHERS

Case Number REFERENCE NO. 3 OF 2007
Summary

On 14th December 2006, the Summit of the Heads of State of the then three Partner States in the East African Community considered and adopted amendments to several articles of the Treaty for Establishment of the East African Community. The amendments appear to have been instigated by an interim order issues by the EACJ restraining the Clerkto the East African Legislative Assembly and the Secretary General of the East African Community from recognizing 9 persons as duly elected by the National Assembly of Kenya to the East African Legislative Assembly. By 19th March 2007, the Partner States had deposited their instruments of ratification on 16th March 2007; the said amendments were published in the East African Community Gazette.

The five applicants jointly challenged the legality of the amendments to the Treaty and sought declarations that the amendment process infringed provisions of the Treaty and norms of international law and was of no legal effect.
RespondentTHE ATTORNEY GENERAL OF THE REPUBLIC OF KENYA & 3 OTHERS
ComplainantTHE EAST AFRICAN LAW SOCIETY & 4 OTHERS
Date filed
CountriesEast African Community , Kenya , Tanzania , Uganda
KeywordCessation of sovereignty , Justiciability , Prospective annulment , Treaty Amendments
Treaty ArticleArticle 150 , Article 26 , Article 30 , Article 38 , Article 5 , Article 7 , Articles of EAC Treaty

First Instance Judgment

Verdict
Residents of the Partner States are vested with the right to access this Court and to challenge any form of infringement of provisions of the Treaty under Article 30. 2. The Partner States bound themselves to abide by the procedure specified in Article 150 in the process of amending the Treaty; they cannot therefore amend the Treaty in any other way. To that extent, the Partner States agreed to cede a degree of their respective sovereignty. Thus, the question whether the amendment process amounts to an infringement of the Treaty is justiciable and cannot be barred on the ground of
sovereignty of the Partner States.
  1. The submission of proposed amendments of the Treaty to the Summit by the EAC Secretary General within five days after his communication to the Partner States was not an infringement of Article 150 (5) of the Treaty.
  2. The Partner States did not engage in any serious widespread consultations on the amendments and failure to carry out consultations outside the Summit, Council and the Secretariat was inconsistent with a principle of the Treaty and constituted an infringement of the Treaty.
  3. The lack of people’s participation in the impugned amendment process was inconsistent with the spirit and intendment of the Treaty in general, and it constituted and infringement of principles and provisions in Articles 5(3) (g), and 7(1) (a). i). The purpose for which Article 26 was amended constituted infringement of Article 38(2) of the Treaty. Though the infringement was not a conscious one, the infringement should not recur. ii). Infringement of the Treaty had no significant effect on the requirement of involvement of people in the Treaty amendment process and shall have prospective application.
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Date deliveredSeptember 1, 2008
Quorum

Appeal Judgment

Verdict
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Date delivered
Quorum