East African Court of Justice Arusha, 22nd September 2014:The East African Court of Justice First Instance Division on 22ndSeptember 2014 heard a case between Union Trade Centre Limited a company legally registered in Rwanda (Applicant) and the Attorney General of Rwanda (Respondent).
The subject matter of the Application is based on alleged unilaterally taking over of the Applicant’s property (Union Trade Centre Mall) by Kigali City Abandoned Property Management Commission (a government body of the Republic of Rwanda) is a violation of Articles 5(3)(g), 6(d), 7(1)(a) & (2) and 8(1)(a) (b) & (c) of the EAC Treaty and that such action has the effect of defeating the objectives and purposes for which the Community was established such as the obligation to enhance and strengthen partnership with the private sector and civil society in order to achieve sustainable socio-economic and political development.
Francis Gimara counsel for the Applicant submitted that, the action of the Respondent is indeed an infringement of the fundamental principles of the Treaty on good governance including adherence to the principles of democracy, rule of law, social justice and maintenance of universally acceptable standards of human rights. He invited the Court to adopt the principle of attribution which is well established in international law and rule that the conduct of Kigali City Abandoned Property Management Commission is an action by Rwanda. He further submitted that the case was filled within the required time limited under Article 30(2) of the Treaty. It was his submission that the Applicant was not informed of any decision taken over its property. The matter was brought to his attention by his tenants who received a letter from Kigali City Abandoned Property Management Commission directing them to pay rent to it. Applicant Counsel prayed for Court’s declaration that the taking over of Applicant property by the Respondent contravenes the above mentioned Treaty provisions. Secondly, that the respondent be restrained from further interference with the Applicant business and management of his property and that the Court orders the Respondent to pay general damages as well as cost.
Mr Malala for the Respondent submitted that the Court has no jurisdiction to hear and determine the matter because the action complained of is not an action by a Partner State or institution of the Community as per Article 30(1) of the Treaty but rather it is an action by the City of Kigali which has a legal personality to sue and be sued in its own name and actions by it cannot be equated to actions of the State. He further contends that the Applicant’s action is time barred as he became aware of the process of taking over the mall since 29th July 2013. It was Counsel’s Submission that, reading the communication between the Applicant and Kigali City, it shows that it is not the Union Trade Centre Mall that is taken over but shares of one of the share holders which was based on the law. It is unless the Applicant challenges the law; he cannot challenge an action arising from it. He further argued that, Rwanda is not endangering the working of the private sectors because it has consistently done well in as far as the private sector is concerned. He prays that the Court finds it has no jurisdiction to entertain the matter and if it rules so, there is no need to determine other specific issues of the case.
The Applicant was represented by Francis Gimara while the Respondent was represented by Mr Aimable Malala.
All appeared before a full bench of the First Instance Division.
For editors
Article 5 (1) The Objective of the Community shall be to develop policies and programmes aimed at widening and deepening co-operation among the Partner State in political, economic, social and cultural fields, research and technology, defence, security and legal and judicial affairs, for their mutual benefit.
(3) for purposes set out in paragraph 1 of the Article and as subsequent provided in particular provisions o the Treaty, the Community shall ensure:
(g) the enhancement and strengthening of partnership with the private sector and civil society in order to achieve sustainable socio-economic and political development.
Article 6 The fundamental principles that shall govern the achievement of the objectives of the Community by the Partner States shall include;
(d) good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities, gender equality, as well as the recognition, promotion and protection of human and peoples rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights.
Article 7 (1) The principles that shall govern the practical achievement of the objectives of the Community shall include:
(a) people-cantered and market driven cooperation
(2) The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and maintenance of universally accepted principles of human rights.
8(1) The Partner States shall:
(a) plan and direct their policies and resources with a view to creating conditions favourable for the development and achievement of the objectives of the Community and the implementation of the provisions of the Treaty.
(b) co-ordinate, through the institutions of the Community, their economic and other policies to the extent necessary to achieve the objectives of the Community.
(c) abstain from any measures likely to jeopardise the achievement of those objectives or implementation of the provisions of the Treaty.
Article 30(1) Subject to Article 27 of this Treaty, any person who is resident in a Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action of a Partner State or an institution of the Community on the ground that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty.
(2) The proceeding provided for in this Article shall be instituted within two months of the enactment, publication, directive, decision or action complained, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be.
-ENDS-
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