Arusha, 8 January 2013: The Attorney General of the Republic of Kenya has asked the Appellate Division of the EACJ to dismiss the Application by Independent Medical Legal Unit (IMLU) seeking the review of its own judgment which was rendered on 15th March 2012 in favor of the Kenyan Government as the Court ruled that the matter was filed out of time.
Appearing before Justices Harold Nsekela, President, Philip Tunoi, Vice President, Emillie R. Kayitesi, Laurent Nzosaba and James Ogoola on Tuesday, State Attorney Mr. L. Ngugi Muiruri representing the Attorney General of Kenya argued that EACJ does not have the jurisdiction to review its own judgment and that the application was not properly before the Court. He said that there are no errors shown as alleged that the Court did not consider the police report and no grounds as well to show that injustices have been caused to the Applicants.
Ms. Kethi Kilonzo, an advocate for Independent Medical Legal Unit (IMLU) however prayed Court to allow the Application and find that it has the jurisdiction to review the judgment under Article 35 (3) of the Treaty for Establishment of East African Community.
The Article provides that An Application for review of judgment may be made to the Court only if it is based upon the discovery of some fact which by its nature might have had decisive influence on the judgment, if it had been known to the Court at the time the judgment was given, but which fact, at that time was unknown to both the Court and the Party making an Application..
She argued that the Court concentrated on the errors of Laws not errors of facts and evidence and therefore did not consider the Police Investigation Report which was substantial in considering the computation of time under Article 32 of the Treaty and therefore caused injustices.
The subject of the matter is where the Kenyan Government is accused of failing to investigate, prosecute and punish those responsible for executions, acts of torture, cruelty, inhuman and degrading treatment of over 3,000 Kenyan residents in Mount Elgon District was in contravention of the Treaty.
The said acts were a result of land settlement schemes in the Mt. Elgon area where an armed militia known as Saboat Land Defence Force was formed in the district and grew to terrorize and execute residents of that area, causing the government to deploy security forces to carry out an operation known as OPERATION OKOA MAISHA.
During the operation, residents of Mt. Elgon reportedly lost their lives and were tortured in an attempt to flush out the members of the Saboat Land Defence Force, houses were burnt, women and young girls were raped, innocent residents were arrested and money was extorted from residents for release.
Court said its judgment on the matter would be delivered on notice.
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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.
Any person who is resident in an EAC Partner State may refer for determination by the East African Court of Justice, the legality of any Act, directive, decision or action of a Partner State or an Institution of the Community on the grounds that such Act, regulation, directive or action is unlawful or is an infringement of the Treaty and proceedings are instituted within two months of the act complained of or of the day in which it came to his/her knowledge. The Court also has arbitration jurisdiction.
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