Case Number APPEAL NO. 7 OF 2015

In 2015, the Respondent (the then Applicant) filed a Reference complaining about actions and decisions of East African Legislative Assembly (EALA) and its Committee on Legal Rules and Privileges which had led investigations resulting in her impeachment as the Speaker of EALA. Prior to the hearing, the Appellant raised a Preliminary Objection claiming that the Respondent’s witnesses, members of EALA, could not testify on her behalf without the special approval of the Assembly pursuant to Section 20 of EALA’s Powers and Privileges Act, 2003. The Respondent averred that the purported preliminary objection could not dispose of the case since no evidence had yet been adduced at the trial. In the ruling, the Trial Court found that it would be premature to forestall the Respondent’s evidence on the ground that it did not comply with Section 20 without first hearing that evidence so the objection was overruled.

In its appeal, the Appellant alleged inter alia that: the Trial Court erred by overruling the preliminary objection; that the Statement of Reference, disclosed the nature of the evidence to be adduced and this evidence ran afoul of Section 20; the Trial Court committed a procedural irregularity by ignoring the Parties’ Pleadings, Affidavit in support of the Reference and the documents supplied by the Clerk of EALA and finding that there was no evidence to enable it to determine whether the Respondent’s evidence fell within the ambit of Section 20; that the Trial Court misinterpreted the law on admission of evidence relating to Parliamentary Proceedings by holding that the Respondent could use the proceedings as evidence as long as she did not rely on the contents thereof; and in awarding costs to the Respondent.

In reply, the Respondent argued that: there was a purported preliminary objection before the Trial Court which could not dispose of the case since no evidence had been adduced at the trial; the objection was premature; furthermore, no procedural irregularities had occurred as the Respondent had opted to give oral evidence and the Trial Court was yet heard to hear the evidence and that of the witnesses.

RespondentRt. Hon. Margaret Zziwa
ComplainantThe Secretary General of the East African Community
Date filedNovember 6, 2015
CountriesEast African Community
KeywordDecree , EALA , Interactory decision , Order , Pleadings , Preliminary Points of law , Procedural irregularities , Record of Appeal
Treaty ArticleArticle 35 A , EALA (Powers and Privileges) Act 2003 , Rule 1 , Rule 111 , Rule 114 , Rule 41 , Rule 69 , Rule 88 , Rules of Procedure 2013 , Section 20

First Instance Judgment

VerdictAs we take leave of this Amended Reference, we are constrained to observe that it did illuminate the vitality of respect for and submission to the rule of law in the conduct of public affairs. To that end, we deem it our duty to and do hereby propose that it is a basic expectation that all holders of public office would discharge their duties with respectful regard for designated processes; demonstrable deference to legal propriety and due diligence, and a reasonable disdain for impunity, partiality and bad faith. The trampling roughshod over designated legal processes and basic principles of natural justice would certainly not, in our most considered view, engender an environment conducive to harmonized regional integration in the EAC. The Reference has also brought to the fore the need for EALA to relook at its House and Committee procedural rules, and address lacunas that could cause confusion in its legislative function. In the final result, we do allow the Amended Reference in part with the following Orders: a. A declaration doth issue that the purported sitting of the Assembly on 26th November 2014 without the elected Speaker of the Assembly violated Article 56 of the Treaty; was unlawful, procedurally wrong and of no legal consequence. b. A declaration doth issue that the Committee on Legal, Rules and Privileges was improperly constituted for purposes of the Speaker's removal and constituted a breach of the Rules of natural justice owing to demonstrable bias, and accordingly the report arising therefrom is null and void. c. A declaration doth issue that grounds 1.1, 1.2, 2.1, 2.2, 2.3, 2.5, 3.4 and 3.5 do correspond to grounds of misconduct under Article 53(3) of the Treaty. d. Each Party shall bear its own costs. It is so ordered.
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Date deliveredFebruary 3, 2017

Appeal Judgment

  1. A preliminary objection can only be properly taken where it involves a pure point of law, which if argued successfully, would summarily dispose of the suit or Application before the Court without a hearing on the merits. The purpose is to terminate the proceedings without a consideration of the merits and thereby saving the Court’s and parties’ time and money.
  2. The objection in this case pertained to the production and admissibility of evidence and could not have been determined without the Trial Court hearing the witnesses and examining whether: the evidence offended Section 20 (1); they were adducing forbidden evidence; and whether special leave had been obtained. It was
not a true preliminary objection because it was not founded on a pure point of law which, if upheld, would have summarily disposed of the Reference before the Court. Additionally, the Clerk of EALA had already produced certain documents in compliance with the witness summons, which would have had to considered during hearing on the merits of the case even if the Respondent’s witnesses had been debarred on the basis of the Appellant’s objection.
  1. The import of Section 20(1) of EALA’s Powers and Privilege’s Act was that no member or officer of the Assembly, minute takers or evidence recorder could give evidence outside EALA of the contents of minutes or record of evidence of EALA or documents laid before the Assembly or a Committee in respect of any proceedings or examination held before the Assembly or Committee without the Assembly’s special written leave. EALA minutes, records, documents, proceedings or examinations are privileged evidence inadmissible in any forum unless the privilege is waived by the Assembly. The proof of the waiver of the privilege is a written permission from the Assembly. While the witnesses are not incompetent to testify, the material they sought to adduce in evidence was privileged.
  2. It is trite law that pleadings in Court whether in the form of a Reference, Motion on Notice, Statement of Claim or by whatever other name called are not evidence. They are averments the proof of which are submitted to the trier of fact. The Respondent’s Statement of Reference and the documents enumerated therein as constituting the nature of evidence in support of her case were not evidence.
  3. A Court commits a procedural irregularity when, inter alia, it acts irregularly in the conduct of a proceeding, for example by ignoring the party’s pleadings. The Trial Court could not, fairly, be accused of committing a procedural irregularity by ignoring such ‘evidence’ in examining the applicability of Section 20 of the Privileges Act. The Trial Court in so holding had scanned the statute with legal lenses, and what it discerned was unimpeachable.
  4. The Respondent elected at the Scheduling Conference to offer oral evidence, therefore the Respondent’s affidavit in support of the Reference could not be regarded as evidence in the case until the Respondent adopted the contents thereof and the same was tendered as an exhibit in the case. The documents produced by the Clerk to the Assembly were not and could not be evidence to be taken into account in the determination of whether or not the Respondent’s witness should be barred from testifying by virtue of the provisions of Section 20 of the Privileges Act as the Clerk was not one of the Respondent’s witnesses. The Trial Court did not therefore commit a procedural error, and such charge is devoid of merit.
  5. With regard to the alleged error of law in the interpretation of Section 20 of the Privileges Act, the ratio decidendi of the impugned Ruling was that it was not open to the Court to find that the evidence the Respondent and her witnesses would adduce would be an affront to Section 20 of the Privileges Act, without first hearing them. Thus, the Trial Court did not commit any error of law.
  6. While Article 35A of the Treaty throws open the door of the Appellate Division to any complaint against any decision of the First Instance Division (whether the decision is final or interlocutory), there is wisdom in appealing against the final decision of the Court. A lot of to-ing and fro-ing between the two Divisions of the Court could be avoided, with benefit in saving of costs and precious judicial time, if parties in the First Instance Division who are aggrieved with its interlocutory decisions could, unless justice would otherwise be irreparably damaged, reserve their right of appeal therefrom to the substantive appeal from the final decision of the First Instance Division. The adoption of this practice would result in more expedition in the dispensation of justice and the Court commends such a practice.
  7. There is a difference between Judgment and Decree, on the one hand, and Ruling (or reasoned Order) and Order, on the other hand as set out in Rules 88(1) and 69. The Record of Appeal did not contain the Order appealed from and was thus incomplete and the Appeal was incompetent.
10.Costs in any proceedings follow the event unless the Court for good reasons otherwise orders. The “event” referred to in Rule 111 (1) is the outcome of the matter before the Court for consideration when the order for costs is made. The matter before the Trial Court at the time the order for costs was made was not the substantive Reference but the preliminary objection. The said objection was overruled so the Respondent succeeded was entitled to costs. The appeal is dismissed with costs.
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Date deliveredMay 27, 2016