Case Number APPLICATIONS NO. 20 & 21 OF 2014 (ARISING FROM REFERENCE NO. 6 OF 2014)
Summary
  1. Applications No. 20 and 21 of 2014 were separately brought under Article 40 of the Treaty for the Establishment of the East African Community (hereinafter referred to as ‘the Treaty), as well as Rule 36(1) and (2) of the East African Court of Justice Rules of Procedure, 2013 (hereinafter referred to as ‘the Rules).
  2. In Application No. 20 of 2014, UHAI EASHRI (hereinafter referred to as the First Applicant) sought to be joined as amicus curiae in Reference No. 6 of 2014 Human Rights Awareness and Promotion Forum (HRAPF) vs. Attorney General of Uganda. Similarly in Application No. 21 of 2014, Health Development Initiative – Rwanda (hereinafter referred to as the Second Applicant) sought to be joined as amicus curiae in the same Reference.
  3. In Reference No. 6 of 2014, HRAPF (hereinafter referred to as ‘the First Respondent) had contested the validity of certain sections of Uganda’s now repealed Anti-Homosexuality Act, 2014 in so far as they allegedly violated Articles 6(d), 7(2) and 8(1)(c) of the Treaty.
  4. At the hearing of the Applications, learned Counsel for the Applicants successfully applied to have them consolidated, hence the present Consolidated Application. The Applicants were both represented by Mr. Colbert Ojiambo; the First Respondent was represented by Mr. Ladislaus Rwakafuuzi, while Ms. Patricia Mutesi and Ms. Josephine Kiyingi appeared for the Second Respondent.
  1. APPLICANTS’ CASE
  2. Application No. 20 of 2014 was premised on the following grounds:
    1. As an organisation that seeks to positively influence policies and practices on human and sexual rights, the First Applicant had an interest in the conduct and outcome of Reference No. 6 of 2014 (hereinafter referred to as ‘the Reference’) in so far as it pertains to a statute on sexual rights ;
    2. As an organisation that is actively involved in the promotion and development of human and sexual rights in the East African region, and mandated to conduct research on, as well as collate and disseminate information about the said rights for purposes of institutional development, the First Applicant had acquired sufficient expertise in the area of human and sexual rights that it wished to draw to the Court’s attention to assist it resolve the complex questions posed by the Reference;
  • This Court’s decision would be a benchmark for policy makers and legislators in the East African region, therefore it was fair and just to permit an entity with knowledge of the legal landscape of other countries in the region to avail the Court with information that would assist it arrive at a wholesome decision ; and
  1. Granting the Application would cause no prejudice to the Respondents.
  1. On the other hand, the grounds outlined in Application No. 21 of 2014 were materially similar to those highlighted in clauses (ii), (iii) and (iv) above, with the additional ground that as an organisation that seeks to inter alia contribute to and educate young people on HIV/ AIDS, malaria, tuberculosis, reproductive health, sexually transmitted diseases and other preventable diseases, the Second Applicant had an interest in the outcome of the Reference in so far as it pertains to human rights violations.
  2. Responding to questions from the Bench, Mr. Ojiambo contended that although the Second Applicant was operative in Rwanda while the applicability of the Anti-Homosexuality Act that was in issue under the Reference was restricted to Uganda, nonetheless, the Treaty mandated any member of the East African Community (EAC) to challenge a law of any EAC Partner State if it was deduced to contravene Treaty provisions.
    1. RESPONDENTS’ CASE
    2. Whereas the First Respondent did not contest the Consolidated Application, the Second Respondent did oppose it and specifically filed an Affidavit in Reply in respect of Application No. 20 of 2014.
    3. In opposing Application No. 20 of 2014, the Second Respondent relied on the Affidavit of one Oburu Odoi Jimmy, in which he averred that literature that he had accessed from the First Applicant’s website (eahi-uashri.org) depicted it as an organisation that promoted lesbian, gay, bisexual, trans-sexual and intersex (LGBTI) rights within the East African region, and therefore was not a neutral or impartial party as is legally required of an amicus curiae. The literature in question was duly appended to the deponent’s Affidavit.
    4. It was argued for the Second Respondent that the First Applicant had no legal expertise to bring to the Reference as this Court was capable of interpreting the relevant legal provisions without assistance. Mutesi argued that the First Applicant was partial in so far as it advocated for LGBTI rights; was incapable of providing the Court with a neutral and unbiased opinion as was required of an amicus curiae; would serve better as an expert witness for the Applicant in the Reference given that they were advancing the same position, and allowing the Application would occasion injustice to the Second Respondent. It was Ms. Mutesi’s contention that although the decisions of this Court were binding on EAC Partner States, that was not a legal basis for the grant of an application to appear as amicus curiae.
    5. On the other hand, the Second Respondent opposed Application No. 21 of 2014 on grounds that the information sought to be presented by the Second Applicant included facts and data, contrary to the legally recognised restriction of amicus curiae’s role to legal arguments; the said Applicant sought to go beyond the pleadings in the Reference and make reference to laws of other countries, and had not demonstrated its interest in Reference No. 6 of 2014 as required by Rule 36(2)(e) of the Rules, neither had it demonstrated any justification for the prayer sought in the Consolidated Application as prescribed in Rule 36(4).
RespondentHUMAN RIGHTS AWARENESS & PROMOTION FORUM (HRAPF) AND THE ATTORNEY GENERAL OF THE REPUBLIC OF UGANDA
ComplainantUHAI EASHRI AND HEALTH DEVELOPMENT INITIATIVE – RWANDA
Date filed
CountriesRwanda , Uganda
Keyword
Treaty ArticleArticle 6 , Article 7 , Article 8 , Rule 36

First Instance Judgment

Verdict
  1. In the instant case, the Anti-Homosexuality Act, 2014 clearly sought to inter alia prohibit any form of sexual relations between persons of the same sex or the promotion or recognition of such relations in Uganda. Against that background, it is manifestly apparent that the spirit and letter of that Act run contrary to the objectives of the First Applicant. It follows, then, that it would be illogical to attribute neutrality to the First Applicant, or expect cogent, objective and impartial assistance from it on the matter before this Court in the Reference.   In our considered view, a party that seeks to be enjoined as amicus curiae has a duty to demonstrate its neutrality and objectivity on the subject matter it seeks to address the court on.  In Application No. 20 of 2014, the material before this Court runs contrary to that test of neutrality.  Perhaps more importantly, the participation of such a demonstrably non-neutral party as amicus curiae in the Reference would be a dereliction of this Court’s duty to exercise its discretionary powers judiciously and not in a manner that would cause injustice to one party.
  2. In the EAC jurisdiction, distinction has been drawn between an amicus curiae and an intervener: the latter may advocate a point of view in support of one party over another, whereas the former may not. See Rule 36 of the Court’s Rules of Procedure and Trusted Society of Human Rights Alliance vs. Mumo Matemo & 5 Others Petition No. 12 of 2013 (SCK). We think that this is a useful distinction to distinguish between a party to a suit that has locus standi in a matter; an intervener that, while not having locus standi in a matter, does have a partisan interest therein, and an amicus curiae that has an interest in providing objective, cogent assistance to courts to engender the advancement of legal jurisprudence on a given subject.  Consequently, we are satisfied that it would be neither justified nor just, or in the interests of justice to grant leave to appear as amicus curiae to a party that does not pass the test of neutrality that is so pertinent to the role of an amicus curiae in this jurisdiction.
  3. In the result, Application No. 20 of 2014 is disallowed. We hereby dismiss the Consolidated Application with costs to the Second Respondent. It is so ordered.
Dated and delivered at Arusha this 17th day of February, 2015.
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Date deliveredFebruary 17, 2015
Quorum

Appeal Judgment

Verdict
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