East African Court of Justice, 4 June 2020:  The Appellate Division dismissed an Appeal filed by the Attorney General of the Republic of Burundi (Appellant) against the Judgment of the First Instance Division (“the Trial Court”) over the dismissal of a dispute on the election of the Speaker of the 4th East African Legislative Assembly (EALA),claiming that the Speaker was elected in breach of Articles 53(1) or 57(1) of the Treaty, or Rule 12(1)of the Assembly’s Rules of Procedure.

The Appellate Court in its decision concluded that, It is clear that the Appellant’s challenge to the election of the Speaker of the 4th Assembly of EALA has failed in both the Trial Court and in this Court as the 3 issues for determination have all been answered in the negative and awarded Costs of the Appeal to the Respondent and the Intervener. The Cross-Appeal by the Respondents succeeded, with the result that the Respondent (Secretary General of East African Community) and the Intervener (Hon. Fred Mukasa Mbidde, a Member of EALA), will be awarded their Costs in the Trial Court.

Further the Appellate Court said that, the reason given by the Trial Court to deny the successful litigants their costs in the Reference could not be said to be an exceptional reason or ground to justify such a decision, it was a limping and irrational decision which ignored the relevant procedural history of the matter and was regarded as un-judicial exercise of discretion.  For that reason, the Appellate Division found that the Trial Court erred in law in denying the Respondent and the Intervener their costs.

Also, the Appellate Court found and held that the alleged fact of non- participation by elected members of EALA from the Republic of Burundi and United Republic of Tanzania in the election of the Speaker was not admitted either expressly or impliedly by dint of the law of pleadings as articulated in Rule 43 of the Rules of the Court and concluded that the Trial Court did not commit any procedural irregularity by not applying the said rule to find for the Applicant.

The Appellate Division also found and held that the Trial Court did not commit any procedural irregularity or err in law by striking out the Affidavits in support of the matter sworn by Nestor Kayobera, Counsel representing the Attorney General of Burundi (Applicant) in the Reference. The impugned Affidavits were challenged by both the Respondent and the Intervener and the Court did the only proper thing in the circumstances by striking them out and expunged them from its records. The said evidence was struck out as being both hearsay and having been deposed to by Counsel with personal conduct of the matter. Rule 47 of the Rules of the Court was not applicable to the striking out of affidavits and the Appellant had not substantiated the allegation that the Trial Court committed a procedural irregularity without complying with the said Rule.

Further still, the impugned Affidavits, containing as they did, hearsay evidence of the non- participation of Elected Members of EALA from Burundi and Tanzania in the election of the Speaker (which was a contested fact in issue) and having been deponed by Counsel on record and with personal conduct of the Reference yearned for rejection. Court added that, Advocates are officers of the Court, they are expected to discharge their duty to the Court with independence in the interests of the administration of justice. Advocates appearing in court are not agents of the Parties but their representatives and, as such, they exercise an independent mind, a reason why Court shuts its ears on affidavits sworn by Counsel with conduct of the matter.

The Court found that, the Trial Court did not commit any error of law or a procedural irregularity by not ordering production of evidence from the Secretary General (Respondent, who is an ex officio of the Assembly) and Hon Mukasa Mbidde (intervener, who a member of EALA) on the fact of the existence of quorum during the election of the Speaker of the 4th Assembly of EALA. That Rule 1(2) of the Court Rules was not applicable in the circumstance of the case before the Trial Court.

This was a majority judgment delivered via Video Conference by Honourable Judges of the Appellate Division: Dr.Hon.  Emmanuel Ugirashebuja (President), Hon. Justice Aaron Ringera, Hon. Justice Geoffrey Kiryabwireand Hon. Justice Sauda Mjasiri. The Vice President of the Court, Hon Justice Liboire Nkurunzinza exercised his right under Article 35 (2) of the Treaty for the establishment of the East African Community, to dissent from the majority judgment. The Vice President will deliver his judgment at a later date.

Background

The basis of the Reference (challenge) was that any decision of EALA taken in the absence of one third of the EALA members ( in this case members from the Republic of Burundi and the United Republic of Tanzania did not participate) runs  foul of the quorum requirement in Rule 12(c) of the Assembly’s Rules of Procedure. The Reference was grounded on factual averments that during the Proceedings for the election of the Speaker of the 4th Assembly held on 18th December, 2017, elected members from the Republic of Burundi and the United Republic of Tanzania did not participate in the voting.

The Reference was supported by both a main and a supplementary Affidavit both sworn by Mr. Nestor Kayobera (“ Kayobera”), the Director of Judicial Organization in the Ministry of Justice, Republic of Burundi.  Kayobera also happened to be the Counsel with personal conduct of the Reference before the Trial Court.

The Reference was opposed.  In the Respondent’s Response, it was averred that it was not true that the members from the Republic of Burundi and the United Republic of Tanzania did not participate in the voting; to the contrary, the two Partner States were present in the precincts of the Assembly and decided to exercise their right to abstain from voting given that the right to vote includes the right not to vote.  It was further averred that the Members from the two Partner States participated to the extent that they nominated candidates to the positions of the Speaker and who participated in the election but lost.

It was further averred in the Response to the Reference that the same was misconceived, as the election of a speaker was not governed by Rule 12(1) but Rule 6 (1) of the Rules of Procedure and the Speaker was duly elected and garnered two thirds majority as required by Rule 6 (e) of the Rules of Procedure.

The Intervener raised several points of law (obviously in contravention of his remit under Article 40), questioned the admissibility of Kayobera’s Affidavits in support of the Reference, and supported the Respondent’s contention.

Upon considering the Pleadings, the evidence, and the Parties’ Submissions (oral and written), the Trial Court found and held that:

  • the provision of the Rules of Procedure of EALA which governs the election of speaker is Rule 12(1) and not Rule 6(1) and accordingly, the requisite quorum for the election of the Speaker was half of the elected members of EALA who should be composed of at least one third of the elected members from each Partner State;

(ii) the factual depositions in both the original and the supplementary Affidavits of Kayobera in support of the Reference amounted to hearsay evidence and were, for that reason, inadmissible in evidence in the substantive suit (the Reference), and, furthermore, the Affidavits in their entirety were improper and should be and were expunged from the Court Record for having been sworn by the Advocate with personal conduct of the case; and

(iii) there being no evidence whatsoever on record in support of the Applicant’s claim, it followed that the Applicant had not proved that the election of the Speaker of the 4th Assembly was indeed fraught with the absence of the requisite quorum and, accordingly, neither Articles 53(1) nor 57(1) of the Treaty, or Rule 12(1) of the Assembly’s Rules were contravened in the said election.

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The East African Court of Justice (EACJ or ‘the Court’), is one of the organs of the East African Community established under Article 9 of the Treaty for the Establishment of the East African Community. Established in November 2001, the Court’s major responsibility is to ensure the adherence to law in the interpretation and application of and compliance with the EAC Treaty.

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