DOCUMENTS / COURT MANUAL

I. Preface

A MESSAGE FROM THE PRESIDENT

Almost two decades ago, the first bench of Judges to the East African Court of Justice took oath with the mandate to “ensure the adherence to law in the interpretation and application of and compliance...” with the Treaty Establishing the East African Community. The first case was instituted four years after the first bench was first established. The Court has since delivered decisions on disputes in accordance with its mandate. By doing so, the Court has created a body of case-law. The case-law has grown in leaps and bounds. As is mandated by the Treaty, the Court established its first Rules of Procedure in 2004. The Rules have since evolved to the present 2019 Rules of the Court in order to ensure efficiency of proceedings.

As the body of the case law continues to grow and the rules of procedure having evolved to the current 2019 Rules, Hon. Justice Dr. Emmanuel Ugirashebuja Judges have and will continue to exit the service of the Court while new Judges are appointed to replace them. At the same time, the number of advocates and litigants who choose the East African Court of Justice as a dispute settlement mechanism continues to grow.

It is our assumption that newly appointed judges, advocates who practice before the Court and litigants would acquaint themselves more effectively if appropriately guided. Not only for the practicing bar, but also for the public at large, the more accessible information is about the Court’s decision-making processes, the more we enhance the transparency of our rulings—and the more we strengthen the rule of law in East Africa. This assumption led us to develop this Manual which we hope will guide newly appointed Judges and Court users to navigate the law and practice of the East African Court of Justice. As the Court’s jurisprudence continues to evolve, it is our hope that this guide will also be periodically updated to reflect the evolving state of the law.

The address of the main registry is provided below:

East African Court of Justice EAC Headquarters, 1st Floor, Africa Mashariki Road, EAC Close, P.O. Box 1096 Arusha, Tanzania Tel: +255 27 2506093 Fax: +255 27 27 2509493 Email: eacj@eachq.org

The addresses of the sub-registries is provided below:

East African Court of Justice Sub-registry Court of Appeal of Tanzania Sokoine/ Ohio Street Kivukoni Front, P.O. Box, 9004, Dar-Es-Salaam, Tanzania Tel: +255-786-546475 Email: mafwerejr@hotmail.com Dmafwere@eachq.org

East African Court of Justice Sub-registry High Court of Rwanda Kigali, Rwanda Tel: +250-788621398 Email: grusingiza@yahoo.fr grusingiza@eachq.org

East African Court of Justice Sub-registry Milimani Law Court Nairobi, Kenya Tel: +254-721-405806 /+254-705-769908 Email: mochieng@eachq.org Email: achiengmarthlida@gmail.com

East African Court of Justice Sub-registry Court Supreme Building First Floor, Number 08 Bujumbura, Burundi Tel: + 257-771-185368 / 257-777-51536 Email: JNzokirishaka@eachq.org

East African Court of Justice Sub-registry, Supreme Court of Uganda P.O. Box 6679, Kampala, Uganda Tel: +256-772-867747 Email: twenysimon@yahoo.com STweny@eachq.org

II. Introduction

1. Who is this practical guide for and how does it assist litigants and judges?

This users guide (the “Guide”) is provided free of charge by the East African Court of Justice (“EACJ” or “the Court”) – to be used by all East Africans and others having an interest in the Court. The Guide 1 seeks to help them gain insight into the Court’s functions and operations; and on how to access the Court.

It is aimed at encouraging people to know about the EACJ, to make use of it in their civil cases or disputes and to obtain justice. This Guide aims to clarify who does what; how proceedings are handled in the Court; and how users of the Court can get the most out of the services provided by the Court.

Among the Court’s users are the persons directly involved in the cases brought before the Court, namely: the parties and their lawyers, the witnesses (including expert witnesses), “the friends of the Court” (amicus curiae), researchers, scholars, students of law and integration, administrators and policy makers both at the East African Community level and at the Partner State level, and many others.

This Guide does not constitute an authoritative interpretation or opinion of the Court. Its characterizations, omissions, and analysis are not a formal pronouncement on the state of the law and are not binding on this Court or any other.

Many of the laws and procedures that control the Court’s operations have been simplified and summarized in this Guide for easy and ready understanding. It should, therefore, be used only as a guide to the substantive provisions governing the operations of the Court (i.e. the primary law of the Court). If you are in any doubt about your rights, you should check with the registry of the Court, or refer to the primary law or your lawyer.

2. What is the East African Community?

2. What is the East African Community?

The original Partner States of the East African Community were the Republic of Kenya, the United Republic of Tanzania, and the Republic of Uganda.

The East African Community is now comprised of six nations (the “Partner States”): the Republics of Burundi, Kenya, Rwanda, South Sudan, the United Republic of Tanzania, and the Republic of Uganda.

The East African Community was revived on November 30, 1999, when the Treaty for the Establishment of the East African Community (the “Treaty”) was signed. It came into force on July 7, 2000, 23 years after the demise in 1977 of the old East African Community established by the 1967 Treaty.

This followed a process of re-integration which was embarked on in 1993, and which involved tripartite programmes of co-operation in political, economic, social and cultural fields, research and technology, defense, security, legal and judicial affairs.

3. What is the Treaty for the Establishment of the East African Community?

The Treaty for the Establishment of the East African Community (“the EAC Treaty”) was signed in November 1999 and entered into force in July 2000. In 2007, Tanzania, Kenya, Rwanda, Burundi and Uganda established as an integral part of the Community a common market for widening and deepening mutual cooperation to boost economic growth, cooperation and development of their common region. South Sudan became the sixth member of the Community in September 2016 after the implementation of the common market had already commenced.

The Partner States have authorised and allowed between and among themselves free movement of goods and services; free movement of capital; free movement of labour and persons; and the right of establishment and residence in order to benefit all the people of East Africa [Article 7 (1) of the Treaty].

In the Treaty the Partner States agreed that the objectives of the Community shall be “people-centred and market-driven,” looking for economic growth and development of the region. The East African Community has seven key organs: the Summit of the Heads of State and Government (the “Summit”), the Council of Ministers, the Co-ordination Committee, the Sectoral Committees, the East African Court of Justice (the “EACJ”), the East African Legislative Assembly (the “EALA”), and the EAC Secretariat. These organs have been created by the Treaty as mechanisms to achieve its goals [Article 9 of the Treaty].

4. What are the basic objectives and fundamental principles of the East African Community?

In furtherance of the establishment of the Community, the Partner States agreed to establish a customs union and a common market as transitional integral parts of the Community [Article 2(2)] whose basic objectives include:

Development of policies and programmes for widening and deepening co-operation among the Partner States in political, economic, social and cultural fields, research and technology, security, legal and judicial affairs;

Establishment of a customs union, a common market and subsequently, a monetary union; and, ultimately, a political federation in order to strengthen and regulate their relations, the benefits of which are to be shared equally [Article 5].

To achieve their basic objectives, the Partner States agreed to the following fundamental Principles:

  • Mutual trust, political will and sovereign equality;
  • Peaceful co-existence;
  • Good neighborliness;
  • Peaceful settlement of disputes;
  • Good governance, democracy, rule of law, accountability, transparency, social justice, equal opportunity, gender equality; and recognition, promotion and protection of human rights;
  • Equitable distribution of benefits;
  • Co-operation for mutual benefit.

They also agreed to the following operational principles for the Community:

  • Provision of an enabling environment, such as conducive policies and basic infrastructure;
  • Establishment of an export oriented economy, with free movement of goods, persons, labour, services, capital, information and technology;
  • Principle of subsidiarity (i.e. multi-level participation of a wide range of participants in the economic integration);
  • Principle of variable geometry (i.e.flexibility to allow economic integration/participation at different speeds);
  • Equitable distribution of benefits;
  • Principle of complementarity (i.e. extent to which economic variables support each other);
  • Principle of asymmetry (i.e. variances in implementation measures) [Article 7(1)]

In light of the above operational principles and pursuant to Article 7(2) of the Treaty, the Partner States undertake to abide by the principles of good governance, adherence to democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.

Under Article 8 of the Treaty, the Partner States have undertaken:

  • To plan and direct their policies with a view to achieving the objectives of the Community, and implementing the provisions of the Treaty;
  • To co-ordinate their policies through institutions of the Community;
  • To abstain from measures likely to jeopardize the achievement of the above objectives or their implementation.

In this regard:

  • Each Partner State undertakes to enact and implement legislation necessary to give effect to the East African Community Treaty [Article 8(2)];
  • Community organs, institutions and laws take precedence over their national counterparts [Article 8(4)].

NB: All the above basic objectives and fundamental/operational principles, serve as valuable aids and guides in the interpretation and application of the Treaty.

5. What are the protocols to the Treaty?

Protocols under the Treaty comprise any agreement that supplements or amends or qualifies the provisions of the Treaty. Once signed and ratified by the Partners States, protocols become an integral part of the Treaty: As such, they become an aid to the interpretation and application of the Treaty.

Three such protocols have been signed by the Partner States:

  • The protocol establishing the East African Customs Union (signed on 2nd March, 2004) came into force on 1st January, 2010. This protocol provided for the first stage of the East African Community – namely, a customs union in which tariffs and non- tariff barriers are reduced and progressively dismantled.
  • The protocol establishing the East African Common Market (signed on 20th November, 2009) came into force on 1st July, 2010. This protocol elaborates the freedoms of movement of goods, services, labour, capital, persons, information and technology; and the rights of establishment and residence – that are germane to a common market.
  • The protocol establishing the East African Monetary Union was signed on 30th November 2013. All Partner States have signed and concluded its ratification. This protocol delineates the “roadmap” to a single EAC currency by 2024, issued by a common EAC central bank. This will be preceded by establishment of key institutions: including an East African statistics bureau; East African surveillance, compliance and enforcement commission (responsible for compliance and enforcement); and an East African finance commission (responsible for financial services).

On 30 November 2013, the Summit of the EAC Heads of State approved extension of the jurisdiction of the EACJ, to include the additional fields of trade, investment, and matters associated with the East African Monetary Union. The details of this extension will require conclusion of a protocol, by the Partner States, to “operationalise the extended jurisdiction” consistent with Article 27(2) of the Treaty.

In furtherance of Article 27(2) of the Treaty, the Protocol to Operalitionalise the Extended Jurisdiction of the EACJ was signed at the EAC Summit of 20 th February, 2015. Upon ratification by Partner States, trade and investment disputes arising from the implementation of the EAC Customs Union, Common Market Protocol and Monetary Union will be adjudicated.

III. Background to the Court

6. What is the East African Court of Justice (EACJ)?

The East African Court of Justice 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.

The defunct East African Court of Appeal was a court of appeal from decisions of the national courts on both civil and criminal matters, except constitutional matters and the offence of treason for Tanzania. The East African Court of Justice is different in composition and jurisdiction. It is an international court unlike the defunct East African Court of Appeal, which handled only appeals from national courts.

The Court’s major responsibility is to ensure the adherence to law in the interpretation and application of and compliance with the Treaty.

Following its inauguration by the Summit and the swearing in of judges and the Registrar on 30th November 2001, the East African Court of Justice became operational. The operations of the Court during the transitional period are ad hoc until the Council of Ministers determines that there is enough business to make it fully operational. This means that judges are not required to permanently reside in Arusha where the temporary seat of the Court is located but they only convene to conduct the business of the Court when the need to do so arises.

7. Why is the East African Court of Justice needed

Disputes, legal problems, questions, or contradictions could arise in any area of cooperation between the Partner States of the Community, its institutions, or its residents.

Some of those disputes could escalate to the point at which one side or the other looks to the court system for resolution by starting a lawsuit. Such disputes must be solved through a regional legal mechanism.

The East African Court of Justice ensures the adherence to law in the interpretation, application of and compliance with the EAC Treaty [Article 23]. It provides necessary decisions and solutions to legal problems or disputes. Indeed, through other legal mechanisms, the Court could even prevent such disputes from escalating into lawsuits. Furthermore, the decisions of the Court have precedence over decisions of national courts on a similar matter [Article 33].

8. What are the main objectives of the Court for achieving its mission?

These objectives include the following:

  • Implement all the relevant provisions of the Treaty [especially Articles 27(2) and 140(4)], including conclusion of necessary protocols;
  • Rationalize the design of the Court under the Treaty;
  • Proactively influence a positive shift in the mind-set of the EAC policy organs and other stakeholders concerning the role and place of the Court;
  • Make the Court visible and indispensable in [matters related to] the discharge of its mandate;
  • Enhance the capacity of the Court.

9. What are the composition, structure and location of the Court?

Following the same spirit of integration, the Court is composed of judges appointed by the Summit from each of the six Partner States of the EAC: Tanzania, Kenya, Rwanda, Burundi, Uganda and South Sudan. Under the Treaty, the Court may consist of a maximum of ten judges in the First Instance Division and five judges in the Appellate Division [Article 24]. Currently, there are a total of eleven judges sitting in Arusha, six judges in the First Instance Division, and five in the Appellate Division. The judges of the Court are appointed by the Summit from among sitting judges of any national court of judicature or from jurists of recognized competence and the Registrar is appointed by the Council of Ministers.

The President and the Vice President are also appointed by the Summit from the judges of the Court. The Court was originally composed of six judges, two from each of the three founding Partner States of the Community, namely the Republics of Kenya, Tanzania and Uganda. The Court is now currently composed of ten judges, following the accession of the Republics of Burundi, Rwanda and South Sudan to the Community.

Following the amendment of the Treaty establishing the East African Community that was carried out on 14th December, 2006 and 20th August, 2007, the Court was reconstituted to have two divisions:

  1. the First Instance Division; and
  2. the Appellate Division ─ [Article 23(2)].

10. What does the First Instance Division of the Court do?

The First Instance Division has the power to hear a party’s case, to administer justice, and to apply the relevant laws to the case (this is called “jurisdiction”). The First Instance Division is presided over by the Principal Judge and has original jurisdiction over any matter within the scope of the Treaty, except that it may not render advisory opinions or preliminary rulings on case stated, or entertain arbitrations. Functioning as a trial court, the First Instance Division acts as the primary fact-finder for the EACJ.

When a party first introduces their claim before the Court, the First Instance Division will decide after hearing and studying the case whether or not the party has a legitimate basis to bring their claim or complaint before the Court. It does so only in accordance with the Treaty. Decisions of the First Instance Division may be appealed to the Appellate Division of the Court [Article 23(3) and Article 35A].

11. What does the Appellate Division of the Court do?

At its inception in November 2001, the EACJ comprised one unitary Court having six judges sitting as a single chamber – with each one of the original three Partner States nominating for appointment by the Summit two of those six judges. The decisions of that Court were final: they were not appealable to any other court or tribunal. That original regime was changed in August 2007, when the Treaty was amended to separate the court into two distinct Chambers:

(a) The First Instance Division, composed of up to ten judges, having original jurisdiction to hear and determine, at first instance,

(b) The Appellate Division, having five judges, appointed with the right to hear and determine appeals from judgments of the First Instance Division. The Appellate Division has original jurisdiction:

  • To provide advisory opinions under Article 36 of the Treaty [Rule 125 of The East African Court of Justice Rules of Procedure 2019 2 (the “Rules” or “2019 Rules”)]; and
  • To entertain preliminary ruling requests (called “case stated”) from national courts of the Partner States for the EACJ to assist those courts to authoritatively interpret the Treaty in cases which are otherwise before such courts [Article 34 & Rule 126].

In the event that a person is dissatisfied with or does not agree with the decision taken by the First Instance Division, such person can take their claim to the Appellate Division of the Court on appeal. The Appellate Division has the power to confirm, deny or change decisions taken by the First Instance Division. The decision of the Appellate Division will be the final decision.

12. What is the responsibility of the Registrar?

Under Rule 7 of the 2018 Rules, the Registrar is “responsible for the acceptance and custody of all Court documents and for effecting service as provided for by these Rules.”

13. What are the sub-registries and where are they located?

The Court has enhanced access to justice by establishing sub-registries in all Partner States and abolishing Court fees. In tandem with the philosophy of accessibility and the desire to bring services near the people, Rule 9(2) of the 2019 Rules (“Registry and sub-registries of the Court”) allows the President of the Court to establish sub-registries of the Court at designated locations within the Partner States.

In November 2010, the Council of Ministers approved the Court’s request to establish the sub-registries, one in each capital of the Partner States. Under Rule 10(2), the Registry and sub-registries will maintain separate registers for claims, references, advisory opinions, applications, preliminary rulings, arbitration, references on taxation, notices of appeal, and appeals. All documents must be filed in English and translated if they are written in other languages.

Given that Arusha remains the temporary seat of the Court until the Summit determines its permanent seat and the High Courts of the Partner States serve as sub-registries, the main registry for EACJ is in Arusha, and the sub-registries are located in Nairobi, Dar-es-Salaam, Kampala, Kigali, and Bujumbura.

IV. Framework for Accessing the Court

14. Do the parties have to pay in order for the Court to fix a trial date?

Not at all. It is the responsibility of the Court to fix the trial date(s) after giving due regard to the views of the parties, and to any special circumstances, including the urgency of the case. Once the trial is fixed, all the parties in the case are informed of the date(s) by the Registrar [Rule 65].

15. How should one address the Court’s officials?

If the person is a claimant, respondent, or witness, they may be required to speak at some point known as giving evidence.

Sometimes before the hearing, the Court will have asked the person to write down what they intend to say, known as a witness statement, and to give it to all involved in the case.

Before the hearing, the Court will advise the person when and how they should do this.

16. How should one address the people who will be present at the hearing?

For the judge(s) including the President and the Principal Judge: My Lady/My Ladies/Your Ladyship(s) or My Lord(s)/Your Lordship(s);

For a Registrar: Your Worship;

For the Attorney General (of a Partner State): Learned Attorney [General];

For the Solicitor General (of a Partner State): Learned Solicitor [General];

For the advocates, including counsel to the Community: Learned Counsel;

For the person bringing a claim: The applicant or claimant;

For the person disputing a claim: The respondent or defendant.

17.What are the different court proceedings and how is the oral proceeding conducted?

The EACJ handles its cases by adhering to the rules and procedure of the Court. The Court ensures that the cases are heard fairly and justly with equal treatment accorded to both parties and in an organized and transparent way. All proceedings, including pronouncements of the Court’s decisions, are held in open court, except in the rare event of a party (for sufficient cause), applying for proceedings in camera [Rule 70]. Also applications heard by a single judge, may be heard in chambers (i.e. the judge’s office), or in open court [Rule 70(2)].

The proceedings before the Court are recorded and later transcribed for ease of access and custody. The transcribed records of each hearing are signed by the Presiding Judge and are kept and maintained by the Registrar.

(1) Adjournments

Adjournments of cases are discouraged unless it is absolutely necessary. Without strict control, adjournments can be the cause for delay of justice. It is against this background that the hearing of cases continues from day to day until the end, unless the Court finds it necessary to adjourn for reasons to be recorded [Rule 76(1)].

A. APPEAL

18. What is the quorum in the Appellate Division?

The quorum in the Appellate Division is three judges, one of whom shall be the President or Vice-President. However, having regard to the public importance of the matter in issue or to any conflict or other complexity in the applicable law, the President or the Court may direct such matter to be heard and determined by the full bench of the Court [Rule 113(1)].

The following applications may be handled and determined by a single judge of the Appellate Division:

(a) Applications to extend any time prescribed by the Court Rules or orders of the Court;

(b) Applications for substituted service;

(c) Applications for examining a serving officer;

(d) Application for leave to amend the record of appeal;

(e) Scheduling conference [Rule 113(2)].

A decision of the single judge of the Appellate Division may be varied, discharged or reversed by a full Court (also known as a “full bench”). At the hearing by the full bench, which does not necessarily entail all five Appellate Division Judges sitting en banc, no additional evidence is adduced [Rule 113(3) & (4)].

A single judge may exercise any power of the Appellate Division except the power to make a decision on appeal.

19. How are appeals heard?

Appeals are heard in open court ─ allowing public access (court space permitting and so long as the public observes orderly Court conduct) [Rule 115(1)]. The Presiding Judge may, in exceptional circumstances direct that the public or any particular person or category of persons be excluded or removed from the Court. Nothing in all this prejudices the inherent power of the Court to hear proceedings in camera or as prescribed under Rules 65 (4) & (5) [Rule 115(2) & (3)].

20. How can an appellant respond to a cross-appeal?

An appellant who has lodged a statement may, if served with a notice of cross-appeal, lodge a supplementary statement of their arguments opposing the cross-appeal [Rule 111(3)].

A party who lodges a statement cannot address the Court at the hearing of the appeal except with the leave of the Court [Rule 111(4)].

21. What happens after the appeal is properly initiated?

When the appeal is ready for hearing and before it is scheduled for hearing, the Court shall hold a scheduling conference. The purpose of the scheduling conference is to ascertain:

  • Points of agreement and disagreement between the parties;
  • Whether legal arguments shall be written or oral, or both;
  • Consolidation of appeals;
  • The estimated length of the hearing; and
  • Any other matters the Court deems necessary [Rule 110(1)].

Before the scheduling conference, the parties shall as far as practicable exchange any documents that are to be relied on in the appeal and agree on all matters listed above before the date fixed for scheduling conference and shall file and serve the same as appropriate [Rule 110(2)].

Where the parties cannot agree on all or some of the matter listed under Rule 110(2) above, each party may file its own memorandum of issues [Rule 110(3)]. After the scheduling conference, if the matter is to proceed to hearing, the Court fixes the hearing date [Rule 110(4)].

Where all the parties opt to present their legal arguments in writing, the Court fixes the time limits for the parties to file their respective written legal arguments. The Court may also fix the date on which the parties shall appear before a full Court to handle any other matter the Court thinks necessary [Rule 110(5)].

22. When is an appeal scheduled for hearing?

The Registrar gives all parties to an appeal at least 14 days’ notice of the hearing date of an appeal; but it is not necessary to give that notice to any party with whose consent the hearing date was fixed [Rule 112(1)]. A notice of hearing under this rule must comply with Form 6 in the Second Schedule to the 2019 Rules [Rule 112(2)].

23. Are there any arguments that are disallowed at the hearing of an appeal?

Except with the Court’s leave, at the hearing of an appeal—

    A party cannot argue that the decision of the First Instance Division should be reversed or varied on any other ground ─ except on the grounds specified in the memorandum of appeal or in a notice of cross-appeal [Rule 116(a)];
    A party cannot support the decision of the Court of First Instance on any ground not relied on by that Court or specified in the notice given [Rule 116(a)];
    A respondent cannot raise any objection to the competence of the appeal which might have been raised by application (under Rule 91 of the 2018 Rules) to strike out the notice of appeal [Rule 116(b)].

24. How is a judgment on appeal delivered?

The judgment of the Court will be pronounced in open court, at the conclusion of the hearing or on a subsequent date notified by the Registrar to all the parties to the appeal or the applications [Rule 119(1)].

The judgment may be pronounced notwithstanding the absence of all or any of the judges who composed the Court. The judgment of any judge not present may be read by another judge or by the Registrar [Rule 119(2)].

The Registrar sends a certified copy of the judgment to the First Instance Division [Rule 121].

B. Complaints about EACJ Services

25. Presentation of complaints concerning EACJ Services

Any person not satisfied with the services of the East African Court of Justice has a right to complain. In this regard, one should be aware that:

  • The Judges and the Registrar of the Court observe a professional code known as the judicial code of conduct. It is the responsibility of every judge and Registrar to ensure they follow principles of independence, impartiality, propriety, integrity and equality.
  • If aggrieved with the judgment, order or decision of a single judge or of the Court, a party can seek a review by the same judge or Court; or a party may appeal to the Appellate Division of the Court, as the case may be;
  • If a party is otherwise dissatisfied with some other aspect of the Court’s services, that party may complain:
  • To the Registrar, where the complaint concerns the Registry or any staff of the Court;

    To the Principal Judge (or Deputy Principal Judge), where the matter is specific to the First Instance Division; or

    To the President (or Vice President), where the complaint is either specific to the Appellate Division, or is general to the Court as a whole.

26. Is the EACJ open to hear my complaints and views?

Any person dissatisfied by the judgment or order or decree of the Court can apply to the Registrar of the Court for a copy of it upon payment of a standard fee.

27. What are the roles and duties of Advocates before the Court and with their clients?

An Advocate is a professional person who is legally qualified and licensed to give advice on legal matters including how to prosecute cases through the East African Court of Justice.

An advocate representing a party before the EACJ must be one who is entitled to appear before a superior court of a Partner State [Rule 19(7)(a)].

The Court is not responsible for appointing Advocates nor does it get involved in the Advocate- Client relationship.

C. COURT HOLIDAYS

28. What are the Court’s holidays?

The official holidays of the Community are the official holidays of the Court.

(a) The EACJ observes the following international holidays: New Year’s Day - (1 st January); Labour Day – (1 st May); Boxing Day (26 th December);

(b) EAC Partner States’ independence days (with the exception of Tanzania where Union Day is observed instead), namely:

- Tanzania (26 th April)

- Burundi (1 st July)

- Rwanda (1 st July)

- Uganda (9 th October)

- Kenya (12 th December)

- South Sudan (9 th July)

(c) Religious days: Good Friday, Easter Monday, Eid el Fitri, Eid el Haji, and Christmas Day;

(d) EAC Day (30 th November)

V. Applicable Law and Interpretive Guides

A. Pleadings

How do litigants file court documents?

The EACJ has launched the Case Management System and Recording System (“CMRS”) in 2017, which is a technology used to control knowledge and methodologies for managing the life cycle of a case more effectively. Additionally, the CMRS provides sophisticated information management and workflow practices within court environments. In particular, the system is developed with:

• The capability of e-filing, which can allow stakeholders to file cases electronically

• Levels of security protocols to curb any security threats both externally and internally

• A unique integration of case management, records management and audio and video recording capabilities

The main benefit of this system is to allow all parties to work from where they are without travelling to Arusha or the sub-registries for filing. It will reduce the filing costs incurred by the litigants and access for the users of the Court and allow for efficient management of Court records.

The CMRS can be accessed at https://cms.eacj.org. Lawyers may also e-file at the court sub-registries of the various Partner States.

How does a case before the Court begin, and who is involved in the case?

Cases begin with the filing of a claim or reference before the Court. The person or institution filing the suit is referred to as the applicant or claimant, the person or entity against whom the case is filed is referred to as the respondent.

In some areas of law, the person filing the claim or reference can also be called the petitioner and the person against whom the case is filed is called the respondent.

What is the procedure when a suit is brought against someone?

The respondent should file a response (i.e. defence) to the reference [Rule 32]

.

Within 45 days after being served with a notification of the reference or statement of claim, the respondent should file a statement of response and should serve a copy of it on the applicant [Rule 32(1)].

Within 45 days after service, the applicant may file a reply to the response. The reply does not repeat the party’s contentions. It focuses, rather, on the issues that still divide the parties [Rule 32(2)].

Likewise, the respondent may respond to the applicant’s reply (i.e. a rejoinder) within 45 days of service. The rejoinder does not repeat the party’s contentions; rather it seeks to bring out unresolved issues between the parties [Rule 32(3)].

How should a respondent/defendant respond in their defence?

A respondent who disagrees with the applicant/claimant’s claim should file their side of the case (i.e. the response) stating:

(a) The name and address of the respondent;

(b) A concise statement of facts and law relied on;

(c) The nature of the supporting evidence where appropriate; and

(d) The order (i.e. relief or remedy) sought by the respondent [Rule 32(1)].

The respondent files the statement of defence with or without a counter-claim; and serves a copy of it on the claimant. A respondent may add a counter-claim to the statement of defence, containing the following:

(a) An admission or denial of the facts stated in the claim;

(b) Any additional facts if necessary and the law relied on;

(c) The order (i.e. relief or remedy) sought [Rule 33].

What happens if a respondent fails to file a response/defence?

Within 14 days after the close of pleadings or such other period as the Principal Judge may direct, the Court holds a scheduling conference with the parties and their lawyers to ascertain:

  1. Points of agreement and disagreement;
  2. The possibility of mediation, conciliation or any other form of settlement;
  3. Whether evidence is to be oral or by affidavit and the time limit within which such affidavits are to be filed and served;
  4. Whether legal arguments shall be written, oral or both;
  5. Consolidation of references, claims and/or applications
  6. The estimated length of the hearing;
  7. Any other matters the Court deems necessary ─ [Rule 63(1)].
Trial proceedings (1) Quorum of the Court

The quorum for the Court is three (3) or five (5) judges, one of whom is the Principal Judge or Deputy Principal Judge. However, having regard to the public importance of the matter in issue or to any conflict or other complexity in the applicable law, the Principal Judge or the Court may direct such matter to be heard and determined by the full bench of the Court [Rule 69(1)].

The following interlocutory (i.e. intervening) matters may be handled by a single judge of the Court [Rule 69(2)]:

(a)Applications to extend any time prescribed by the Court’s Rules or by the Court;

(b)Applications for substituted service;

(c)Applications for examining a serving officer;

(d)Applications for leave to amend a party’s pleadings; and

(e)Applications for leave to lodge one or more supplementary affidavits under rules 51(6) and 53(2).

If a party is dissatisfied with the decision of the single judge, the party may apply informally to the judge at the time when the decision is given or by writing to the Registrar within seven (7) days after the decision of the judge to have it varied, discharged or reversed by a full Court [Rules 68(3)].

At the hearing by the full Court of an application previously decided by a single judge, no additional evidence shall be allowed [Rule 69(4)].

(2) Open Court Proceedings

All proceedings of the Court, including the pronouncement of the Court’s decision are held in open court [Rule 70(1)].

However, for sufficient cause, the Court may order the proceedings to be held in camera (i.e. privately closed to the members of the public) [Rule 70(1)]. Proceedings in camera are exceptional to the general rule and practice requiring cases to be heard in open court, where any member of the public can attend.

Applications heard by a single judge may be held in chambers (judges’ private office) or in open court (public) as the judge deems fit [Rule 70(2)].

A party initiates a case by filing a pleading. Specifically, “the Rules require all matters filed before the Court . . . to be instituted . . . by way of ‘notice of motion.’” Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2011, at 20 (Mar. 15, 2012). The East African Court of Justice (the “Court” or the “EACJ”) “may only be addressed by parties through pleadings or submissions, oral or written, and not by letter.” Att’y Gen. of Rwanda v. Union Trade Ctr. Ltd. (UTC), Appl. No. 15 of 2018, at 2 (Mar. 19, 2019); E. Afr. Law Soc’y v. Att’y Gen. of Uganda & Other, Ref. No. 2 of 2011, at 29 (Mar. 28, 2018).

[I]t is trite law that parties are bound by their pleadings, that no relief will be granted by a court unless it is founded on the pleadings, and that it is not open to the Court to base a decision on an un-pleaded issue unless it appears from the course followed at the trial that the un-pleaded issue had been left to the Court for decision in the matter at hand.

Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Appeal No. 2 of 2017, at 28 (May 25, 2018); see also British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Ref. No. 7 of 2017, at 148 (Mar. 26, 2019) (finding that there was discordance between the applicant’s pleadings and evidence and submissions, but that the applicant is bound by the pleadings because “where a matter is not pleaded and the other Party has no opportunity to respond to it, the ends of Justice would not be met if a court were to determine it.”); Alice Nijimbere v. Sec’y Gen. of EAC, Ref. No. 7 of 2015, at 23 (Mar. 23, 2016) (refusing to consider a remedy that was not introduced in the pleadings (affirmed by Alice Nijimbere v. Sec’y Gen. of EAC, Appeal No. 1 of 2016, 31–32 (Dec. 2, 2016))).

“A cause of action is a set of facts or circumstances that in law give rise to a right to sue or to take out an action in court for redress or remedy.” Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 2 Others, Ref. No. 1 of 2006, at 15 (Mar. 30, 2007). Causes of action “under Article 30 are by way of a ‘Reference’ while those under Article 31 are by way of a ‘Statement of Claim’ and the manner of handling both are also procedurally different.” Sec’y Gen. of EAC v. Angella Amudo, Appl. No. 15 of 2012, at 11 (May 2, 2013) (overruled by Angella Amudo v. Sec’y Gen. of EAC, Appeal No. 4 of 2014, at 18 (July 30, 2015)).

What happens after a case is presented before the Court?

Upon a filing the claim or reference, the Registrar will issue a notification (in the standard Form 1 of the Second Schedule to the 2019 Rules) signed by the Registrar or an authorised officer requiring the respondents to file their statement of defence or response, accompanied by a copy of the statement of the claim or reference [Rule 28].

What happens if the respondent/defendant cannot be found?

Substituted service: Where the notification cannot be served normally [under Rules 28 & 29], the Court may direct the notification to be served by affixing a copy of it in some conspicuous place in both the Court premises and the premises in which the respondent last resided or carried on business or worked for gain, or by advertisement in newspapers; or in such other manner as the Court thinks fit. This is known as substituted service [Rule 31(1)]. Substituted service is as effectual as if service had been made on the respondent personally [Rule 31(2)]. Unless otherwise directed, substituted service shall be by advertisement, in the standard Form 4 of the Second Schedule to the 2019 Rules [Rule 31(3)].

Who may appear or be represented before the Court?

There are several ways in which a person or entity may appear before the Court, depending on the nature of who is appearing or being represented [Article 37].

• A party to any proceedings in the Court may appear in person or by an agent and/or an advocate duly appointed to act on his/her behalf. The advocate must be one who is entitled to practice before a superior Court of any Partner State [Article 37 and Rule 19(1)]; The counsel to the Community is entitled to appear in any matter where the Community or any of its institutions is a party, or where the counsel thinks that such appearance is desirable [Rule 19(4)].

• A corporation or company may either appear or be represented by its director, manager or secretary, who is appointed by resolution under the seal of the corporation or the company. It may also be represented by an advocate [Rule 19(5)];

• A person under legal disability may appear by a guardian ad litem (i.e. a representative who has been appointed just for the reference/claim or trial); or by the next friend, as the case may be. The person may also be represented by an advocate [Rule 19(6)].

The advocate for a party must file with the Registrar a current practicing certificate or document that he or she is entitled to appear before a superior Court of a Partner State [Rule 19(7)].

Subject to any law by which any right or cause of action (i.e. the legal basis for suing) is extinguished by the death of a person, proceedings before the Court do not end upon the death of any party. In the event that the death of a party occurs during the continuance of the proceedings, the legal representative takes over the proceedings [Rule 20(1) & (2)].

Where no legal representative is appointed within a reasonable time, the surviving party may, with the acceptance of the Court, proceed ex parte. This means that the party who is present will continue the process in the absence of the other party [Rule 20(3)].

Who can access the Court to file a reference?

The Court may be accessed by the following States, persons or institutions:

(1) By the Partner States that comprise the East African Community, in the following cases:

If the State considers that another Partner State or an organ or institution of the Community:

(1) has failed to fulfil an obligation contained in the Treaty; or

(2) has infringed a provision of the Treaty ─ [Article 28(1)].

A Partner State may also ask the Court to determine the legality of any Act, regulation, directive, decision or action of another Partner State or of the Community or a Community institution on the ground that it is:

  1. beyond the power of the maker (i.e. ultra vires);
  2. unlawful
  3. infringes the provisions of the Treaty;
  4. infringes a rule of law; or
  5. a misuse or abuse of power ─ [Article 28(2)].
How is a reference initiated and what are the contents of a reference presented before the EACJ?

A reference by a Partner State, the Secretary General, or a legal or natural person (under Articles 28, 29 and 30 of the Treaty) is instituted by lodging in the Court a statement of reference.

A statement of reference which must contain the following information:

  • The designation, name, address and (where applicable) the residence of both the applicant and respondent(s);
  • The subject-matter of the reference and a summary of the points of law on which the application is based;
  • Where appropriate, the nature of any supporting evidence offered; and
  • The relief (i.e. remedy) sought by the applicant [Rule 25(1) & (2)].
  • Where the reference:

    - Seeks to challenge the legality of an act, regulation, directive, decision or action of a Partner State, the application must be accompanied by an affidavit [Rule 25(3)];

    - Is made by a body corporate, the application should be accompanied by documentary evidence of its existence in law [Rule 25(4)].

Pursuant to Rule 25(1) of the 2019 Rules, a Reference must be instituted by presenting the Court with a statement of reference. Afr. Network for Animal Welfare (ANAW) v. Att’y Gen. of Tanz., Ref. No. 9 of 2010, at 12-13 (Aug. 29, 2011) (affirmed by Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2011, at 20-23 (Mar. 15, 2012) (noting that references must be instituted in strict compliance with Rule 25 of the 2019 Rules, but refusing to consider the applicant’s mistake in naming the filed document a “Notice of Motion” instead of a “Reference” a procedural irregularity or an issue raising a point of law creating substantive prejudice or injustice).

References and responses to references “shall state the nature of any evidence in support where appropriate.” Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Appeal No. 1 of 2015, at 13 (Nov. 27, 2014). Any annexures must be notarized and deposed to in an affidavit in support of the Reference. See Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Appeal No. 1 of 2015, at 13 (Nov. 27, 2014). An affidavit need not be filed where a respondent “intend[s] to respond to the application purely on points of law.” Hassan Basajjabalaba & Other v. Att’y Gen. of Uganda, Appl. No. 9 of 2018, at 14 (Mar. 27, 2019).

In considering a claim or reference, the Court must first determine whether it has jurisdiction to hear the case. Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Appeal No. 2 of 2011, at 13 (Mar. 16, 2012) (“Without jurisdiction, the court cannot proceed at all. The determination of doubts about jurisdiction must precede the determination of the merits . . .”); Mary Ariviza & Other v. Att’y Gen. of Kenya & Other, Appl. No. 3 of 2010, at 8 (Dec. 1, 2010) (“[J]urisdiction is the bedrock on which our litigation system is based.”).

The Court has defined jurisdiction to mean:

[T]he authority which a Court has to define matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter or commission under which the Court is constituted, and may be extended or restricted by the like means.

Among A. Anita v. Att’y Gen. of Uganda & Other, Ref. No. 6 of 2012, at 16-17 (Nov. 29, 2013) (citing Jurisdiction, Dictionary of Words and Phrases Legally Defined, 2 nd Edition by John Saunders, Volume 3 p. 113). Once it is established that there are issues subject to judicial examination, “then the Court, barring a specific exclusion as to jurisdiction must proceed and seize the question for determination on their merits.” See The Democratic Party v. Sec’y Gen. of EAC & 4 Others, Ref. No. 2 of 2012, at 21 (Nov. 29, 2013). The Court is expected to restrict itself to the boundaries of its jurisdiction as set forth in the Treaty. Att’y Gen. of Tanz. v. Anthony Calist Komu, Appeal No. 2 of 2015, at 24 (Nov. 25, 2016).

Jurisdiction ratione personae refers to “the ability of the parties to appear before the Court as applicants or respondents or in any other capacity.” Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Appeal No. 3 of 2013, at 15 (July 27, 2015). It must be initially addressed prior to considering the merits of a claim or reference, if raised. Christopher Mtikila v. Att’y Gen. of Tanz. & Other, Ref. No. 2 of 2007, at 5-6 (Apr. 25, 2007). The question of jurisdiction can be raised at any time in the proceedings, and hence cannot be forfeited for not having raised the issue at the outset. However, the question of jurisdiction can be re-examined by the Court suo motu. See Manariyo Desire v. Att’y Gen. of Burundi, Appeal No. 1 of 2017, at 27 (Nov. 28, 2018) (reaffirming that “the Court can on its own motion raise a question of Jurisdiction and determine it”).

Articles 28, 29, and 30 of the Treaty specify the parties who can bring claims before the EACJ. Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Appeal No. 3 of 2013, at 16 (July 27, 2015); Hon. Sitenda Sebalu v. Sec’y Gen. of EAC & 2 Others, Ref. No. 1 of 2010, at 16 (June 30, 2011) (“[T]he Treaty provides for a number of actions that may be brought to the EACJ for adjudication and that Articles 28, 29 and 30 virtually create special causes of action.”). The Court has opposed a restrictive interpretation of these provisions in light of their purpose to ensure Treaty compliance. See E. Afr. Law Soc’y & 4 Others v. Att’y Gen. of Kenya & 3 Others, Ref. No. 3 of 2007, at 15 (Aug. 31, 2008).

Where there are multiple causes of action in the complaint, the Court may decline to hear certain causes of action for lack of jurisdiction while still ruling on the issues over which it does have jurisdiction. Audace Ngendakumana v. Att’y Gen. of Burundi, Ref. No. 11 of 2014, at 15, 17 (Nov. 27, 2015) (exercising jurisdiction over alleged violations of Articles 6(d) and 7(2) of the Treaty but finding no jurisdiction over the legality of an agreement under Burundian law, which was within the jurisdiction of Burundian national courts); Godfrey Magezi v. Att’y Gen. of Uganda, Ref. No. 5 of 2013, at 15 (May 14, 2015) (inclusion of aspects of a Ugandan government report which lay outside the jurisdiction of the Court did not preclude exercise of jurisdiction over alleged violations of Treaty provisions).

A. Reference by Partner States (Article 28) ARTICLE 28 – Reference by Partner States

1. A Partner State which considers that another Partner State or an organ or institution of the Community has failed to fulfil an obligation under this Treaty or has infringed a provision of this Treaty, may refer the matter to the Court for adjudication.

2. A Partner State may refer for determination by the Court, the legality of any Act, regulation, directive, decision or action on the ground that it is ultra vires or unlawful or an infringement of the provisions of this Treaty or any rule of law relating to its application or amounts to a misuse or abuse of power.

Article 28 of the Treaty authorises a Partner State to make a reference to the EACJ in respect of a failure, by either another Partner State, institution of the Community, or organ of the Community, to fulfill an obligation under the Treaty or of an infringement of a provision thereof. E. Afr. Law Soc’y & 4 Others v. Att’y Gen. of Kenya & 3 Others, Ref. No. 3 of 2007, at 15 (Aug. 31, 2008). See, e.g., Att’y Gen. of Burundi v. Sec’y Gen. of the EAC, Ref. No. 2 of 2018, at 7 (July 2, 2019) (reference brought by the Attorney General of Burundi to challenge the election of the Speaker of the 4 th Assembly of the EALA); Att’y Gen. of Burundi v. Sec’y Gen. of the EAC, Appeal No. 2 of 2019, at 15 (June 4, 2020) (appeal against the Judgment of the First Instance Court dismissing the reference brought by the Attorney General of Burundi to challenge the election of the Speaker of the 4 th Assembly of the EALA).

B. Reference by the Secretary General (Article 29) ARTICLE 29 – Reference by the Secretary General

1. Where the Secretary General considers that a Partner State has failed to fulfil an obligation under this Treaty or has infringed a provision of this Treaty, the Secretary General shall submit his or her findings to the Partner State concerned for that Partner State to submit its observations on the findings

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2. If the Partner State concerned does not submit its observations to the Secretary General within four months, or if the observations submitted are unsatisfactory, the Secretary General shall refer the matter to the Council which shall decide whether the matter should be referred by the Secretary General to the Court immediately or be resolved by the Council.

3. Where a matter has been referred to the Council under the provisions of paragraph 2 of this Article and the Council fails to resolve the matter, the Council shall direct the Secretary General to refer the matter to the Court.

Unlike Article 28 of the Treaty, Article 29 applies to a failure or infringement of the Treaty by a Partner State only and not by a Community institution or organ. E. Afr. Law Soc’y & 4 Others v. Att’y Gen. of Kenya & 3 Others, Ref. No. 3 of 2007, at 15 (Aug. 31, 2008)

.

Article 29 of the Treaty mandatorily requires the [Secretary General]: a) if he/she considers that a Partner State has failed to fulfil an obligation under the Treaty or b) if he/she considers that a Partner State has infringed a provision of the Treaty, to submit his/her findings to the Partner State concerned for the Partner State to submit its observations on the findings. If the Partner State does not submit its observations within four months, or if it submits unsatisfactory observations, the [Secretary General] must refer the matter to the Council which shall decide whether to resolve the matter itself or to refer the matter to the EACJ.

Hon. Sitenda Sebalu v. Sec’y Gen. of EAC & 2 Others, Ref. No. 1 of 2010, at 22 (June 30, 2011).

The Secretary General has a margin of appreciation to determine whether a violation has occurred. The Democratic Party v. Sec’y Gen. of EAC & 4 Others, Appeal No. 1 of 2014, at 12 (July 28, 2015).

The Secretary General must have knowledge of the Partner State’s alleged Treaty infringement for its obligations under Article 29 of the Treaty to be triggered. Plaxeda Rugumba v. Att’y Gen. of EAC & Other, Ref. No. 8 of 2010, at 22–23 (Dec. 1, 2011); James Katabazi & 21 Others v. Sec’y Gen. of EAC & Other, Ref. No. 1 of 2007, at 25 (Nov. 1, 2007); see generally E. Afr. Law Soc’y v. Sec’y Gen. of EAC, Ref. No. 7 of 2014 (Mar. 22, 2016). “[I]t is immaterial how that information comes to the attention of the Secretary General.” James Katabazi & 21 Others v. Sec’y Gen. of EAC & Other, Ref. No. 1 of 2007, at 25-26 (Nov. 1, 2007) (specifying that upon filing of an application in the Court, the Secretary General effectively has knowledge and thus has a duty to investigate under Article 29 of the Treaty and register what has happened with the Partner State). Once the Secretary General has such knowledge, failure to act upon that knowledge “can constitute a violation,” and so the Court has suggested that the Secretariat should “establish, as a matter of administrative principle, a standard practice of following up on allegations of treaty infringements and/or violations once it receives formal communication about the same and to act as appropriate including providing feedback to the complainant.” The Democratic Party & Other v. Sec’y Gen. of EAC & Other, Ref. No. 6 of 2011 at 16 (May 10, 2012).

While no reference has ever been referred to the EACJ by the Secretary General under Article 29 of the Treaty, there have been a number of cases in which the claimants have complained that the Secretary General’s failure to submit findings under Article 29, despite having knowledge of certain Treaty violations, constituted a violation of his obligations thereunder. In the seminal case, James Katabazi & 21 Others v. Sec’y Gen. of EAC & Other, Ref. No. 1 of 2007, at 12, (Nov. 1, 2007), the Court held that the Secretary General may, on his or her own initiative, conduct an investigation in order to submit findings under Article 29(1) of the Treaty. Furthermore, the Secretary General is obliged to conduct such an investigation if it is shown that “the events . . . concerning the complainants were so notorious that the [Secretary General] could not but be aware of them.” James Katabazi & 21 Others v. Sec’y Gen. of EAC & Other, Ref. No. 1 of 2007, at 25, (Nov. 1, 2007). But see E. Afr. Law Soc’y v. Att’y Gen. of Uganda & Other, Ref. No. 2 of 2011 (Mar. 28, 2018) (“Notoriety of events is not sufficient a claim in the present context without specific allegations of violation of the Treaty being directly brought to his attention.”).

Accordingly, the Secretary General is obliged to take action under Article 29 of the Treaty once an application is filed with the EACJ and a copy served on him, thereby giving him notice of the alleged violation. The Secretary General can only file a case before the Court with the authorization of the Council. James Katabazi & 21 Others v. Sec’y Gen. of EAC & Other, Ref. No. 1 of 2007, at 25-26, (Nov. 1, 2007). See also The Democratic Party v. Sec’y Gen. of EAC & 4 Others, Appeal No. 1 of 2014 (July 28, 2015), at 25–26 (Secretary General properly discharged his duty upon receipt of the applicant’s reference, having “written to all [r]espondents seeking a clarification on the matter and le[aving] the matter in the Court’s hands” after the applicant filed the reference); E. Afr. Law Soc’y v. Att’y Gen. of Burundi & Other, Ref. No. 1 of 2014, at 37 (May 15, 2015) (Secretary General failed to fully discharge his duty under Article 29 where Partner State remained uncooperative during the Secretary General’s investigation of alleged Treaty infringement and the Secretary General failed to take “effective action to overcome” the lack of cooperation); The Democratic Party & Other v. Sec’y Gen. of EAC & Other, Ref. No. 6 of 2011, at 16 (May 10, 2012) (Secretary General cannot be faulted for not supervising an internal Partner State process currently being undertaken); Mary Ariviza & Other v. Att’y Gen. of Kenya & Other, Ref. No. 7 of 2010, at 23-24 (Nov. 30, 2011) (finding Secretary General did not fail his Article 29 obligations because Applicants failed to establish their case that due process was not followed in Kenya’s Constitution-making process in violation of the Treaty, and so the Secretary General could not have known to submit findings); Hon. Sitenda Sebalu v. Sec’y Gen. of EAC & 2 Others, Ref. No. 1 of 2010, at 31 (June 30, 2011) (finding Secretary General failed to discharge his duty under Article 29 of the Treaty by not reporting to the Council when two Partner States missed the deadline to submit comments on a draft protocol without explanation).

In E. Afr. Civil Soc’y Org. Forum v. Att’y Gen. of Burundi & 2 Others, Ref. No. 2 of 2015 (Sept. 29, 2016), no cause of action was established against the Secretary General. Additionally, the Secretary General has no duty under the Treaty to supervise the Partner States in complying with their obligations under the African Charter, the Protocol to the African Charter, or the Vienna Convention. The Democratic Party v. Sec’y Gen. of EAC & 4 Others, Ref. No. 2 of 2012, at 23 (Nov. 29, 2013) (affirmed by The Democratic Party v. Sec’y Gen. of EAC & 4 Others, Appeal No. 1 of 2014, at 25–26 (July 28, 2015)). Similarly, the Secretary General has no duty under the Treaty to supervise the Council of Ministers in complying with their obligations as outlined in Article 29(2) and (3). FORSC & 4 Others v. Att’y Gen. of Burundi & Other, Ref. No. 12 of 2016 (Dec. 4, 2019), at 24. The Secretary General can be said to have satisfied his or her duty under Article 29 where the Secretary General has peformed activities such as convening forums to address Treaty violations under Article 127(4) and reported potential violations to the Council of Ministers, which have resulted in actions by the Council of Ministers, Sectoral Council of Ministers, or the Summit. FORSC & 4 Others v. Att’y Gen. of Burundi & Other, Ref. No. 12 of 2016 (Dec. 4, 2019), at 21-22, 28-29. However, the Secretary General has no duty to “progress matters to court in the light of accomplished investigation,” as that “is the function of the Council,” “whereas the Secretary General investigates and indicts.” FORSC & 4 Others v. Att’y Gen. of Burundi & Other, Ref. No. 12 of 2016, at 24 (Dec. 4, 2019).

C. Reference by Legal and Natural Persons (Article 30) ARTICLE 30 - Reference by Legal and Natural Persons

1. Subject to the provisions of 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 grounds that such Act, regulation, directive, decision or action is unlawful or is an infringement of the provisions of this Treaty;

2. The proceedings provided for in this Article shall be instituted within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant, as the case may be;

3. The Court shall have no jurisdiction under this Article where an Act, regulation, directive, decision or action has been reserved under this Treaty to an institution of a Partner State.

Article 30 of the Treaty “confers on a litigant resident in any Partner State the right of direct access to the Court for determination of the issues” that relate to interpretation of the Treaty. Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 14 Others, Ref. No. 1 of 2006, at 21 (Mar. 30, 2007). Article 30(1) of the Treaty is “the only article [of the Treaty] under which any legal or natural person may bring” a claim. E. Afr. Law Soc’y & 4 Others v. Att’y Gen. of Kenya & 3 Others, Ref. No. 3 of 2007, at 7 (Aug. 31, 2008); Legal Brains Tr. (LBT) Ltd. v. Att’y Gen. of Uganda, Appeal No. 4 of 2012, at 6-7 (May 19, 2012) (“Among the Treaty Articles, Article 30 is the one which confers jurisdiction on this Court to determine references lodged by legal and natural persons . . . who are resident in the Partner States.”).

1. Claimant’s Standing to Bring a Claim

To bring a claim under Article 30(1) of the Treaty, i.e., to have locus standi, the claimant must be (i) a legal or natural person and (ii) a resident of an EAC Partner State. Godfrey Magezi v. Att’y Gen. of Uganda, Ref. No. 5 of 2013, at 13 (May 14, 2015). 3

i. Legal or Natural Person

A corporate entity can be a legal person under Article 30 of the Treaty, and pursuant to Rule 25 of the 2019 Rules, must submit documentary evidence of its existence in law. Indep. Med. Unit vs. Att’y Gen. of Kenya & 4 Others, Ref. No. 3 of 2010, at 6 (June 29, 2011) (citing Rule 24 of the 2013 Rules (Rule 25 of the 2019 Rules)) (finding the initial lack of registration documentation not an issue since the anomaly was later rectified).

Law societies, including the East Africa Law Society are also legal persons for the purposes of locus standi. E. Afr. Law Soc’y & 4 Others v. Att’y Gen. of Kenya & 3 Others, Ref. No. 3 of 2007, at 7 (Aug. 31, 2008); see also E. Afr. Law Soc’y v. Att’y Gen. of Uganda & Other, Ref. No. 2 of 2011, at 13 (Mar. 28, 2018) (“[W]e have no hesitation in holding that the applicant [the East African Law Society], which is the same entity that has previously instituted many cases before this Court, as a legal entity and person within the meaning of Article 30(1) aforesaid has the locus standi to institute these proceedings”); E. Africa Law Soc’y v. Att’y Gen. of Burundi & Other, Ref. No. 1 of 2014, at 20 (May 15, 2015) (“Regarding the claim in this Reference, we

In certain cases, a claimant may confer power of attorney upon a representative. Powers of attorney “must be construed strictly” in order to properly authorize the representative with such powers. Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Appl. No. 9 of 2014, at 10-11 (Mar. 29, 2017) (citing Edward Bamugye vs. Tropical Africa Bank Limited, Uganda Civil Appeal Court, Civ. Appeal No.48 (2007)) (finding that the words “‘mandated without boundaries and limits’ do not confer such authority expressly or by [necessary] implication” upon the representatives where the Power of Authority is to represent the applicants in matters of shares held at a company because they did not specifically “authoriz[e] the said two Representatives to represent the . . . Applicants in this Application.”); see also Rashid Salum Adiy & 39,999 others v. the Att’y Gen. of Zanzibar & 2 Others, Appl. No. 7 of 2017, at 2 (March 8, 2018) (finding party’s knowing utilization of “an unregistered and therefore defective Power of Attorney . . . to be not only a waste of the Court’s time and to have occasioned an undue delay to the hearing of the matter, but also [to be] an abuse of court process.”). note that the applicant is a legal person . . . as ‘the umbrella regional organization of the national bar associations within East Africa’”); E. African Law Soc’y & 4 Others v. Att’y Gen. of Kenya & 3 Others, Appl. No. 9 of 2007, at 7 (July 11, 2007).

ii. Resident of an EAC Partner State

The Treaty confers standing on residents of EAC Partner States so that a resident can “invoke State responsibility on his own account without the intermediation of the State to which he is a national.” Henry Kyarimpa v. Att’y Gen. of Uganda, Appeal No. 6 of 2014, at 51 (Feb. 19, 2016); see also Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2014, at 28-29 (July 29, 2014) (“Article 30 of the Treaty . . . opens the doors of this Court to permit any person(s) resident in East Africa, to challenge the legality of an ‘Act, regulation, directive, decision or action’ of a Partner State or an institution of the Community on the grounds that it is unlawful or an infringement of the Treaty.”).

Citizens who are not resident in the Partner State at the time of filing their cases have been found to not have standing before the Court. Manariyo Desire v. Att’y Gen. of Burundi, Appeal No. 1 of 2017, at 34 (Nov. 28, 2018). The dissenting opinion in the same case found that while the rights of non-resident citizens can be restricted, the Framers of the Treaty could not have contemplated “Partner States granting property rights (in stocks, shares and other securities) in their states to citizens of and residents in other Partner States and at the same time by reason of Article 30(1) deprive those citizens not resident in a Partner State access to this Court to enforce and protect those same rights granted.” Manariyo Desire v.Att’y Gen. of Burundi, Appeal No. 1 of 2017 (Nov. 28, 2018).

Where an applicant is a citizen of one Partner State, but resident in another Partner State, the requirements of EAC Partner State residency are met. Steven Deniss v. Att’y Gen. of Burundi & 5 Others, Ref. No. 3 of 2015, at 12 (Mar. 31, 2017) (“Applicant claim[ing] to be a citizen of the United Republic of Tanzania who is apparently resident in the Republic of Rwanda . . . does meet the jurisdictional test of ratione personae” under Article 30(1)); Plaxeda Rugumba v. Att’y Gen. of EAC & Other, Ref. No. 8 of 2010, at 12-13 (Dec. 1, 2011) (finding that “a Ugandan of Rwandan extraction . . . [with] her address is in Kampala, Uganda” is a resident of a Partner State). Where an applicant physically resides in a location outside the EAC, notwithstanding citizenship or nationality, the residency requirement is not met. Manariyo Desire v. Att’y Gen. of Burundi, Appl. No. 1 of 2017, at 40-41 (Nov. 28, 2018) (holding that “there is nothing in the text, structure, history, subsequent practice in the application of the EAC Treaty by the Partner States, and subsequent protocols which were ratified by the EAC member states that leads to the conclusion that ‘resident in’ was intended to include citizens who [] do not have a physical presence in any of the Partner States of the EAC” where the Appellant, a Burundi citizen that brought suit concerning a property dispute in Burundi, submitted an affidavit listing their address as a location outside the EAC).

iii. Local Remedies

“[T]he exhaustion of domestic remedies rule . . . requires that before an individual’s claim alleging a violation of his rights is heard by an international court, the court must be satisfied that domestic remedies provided by the municipal law of the Rspondent State have been attempted and exhausted.” Malcolm Lukwiya v. Att’y Gen. of Uganda, Ref. No. 6 of 2015, at 16-17 (Nov. 27, 2018). “[L]ocal remedies are . . . national domestic judicial or legal mechanisms that ensure the settlement of disputes and protection of rights[,]” which “refer to remedies sought from judicial courts and they are considered exhausted if all levels of national courts have been petitioned and non-judicial remedies are not considered an exhaustion of domestic remedies.” Malcolm Lukwiya v. Att’y Gen. of Uganda, Ref. No. 6 of 2015, at 17 (Nov. 27, 2018).

This “rule is widely upheld by international courts having direct jurisdiction over individuals as a treaty requirement and as a rule of customary international law. In that regard, the exhaustion of local remedies rule is considered as a condition precedent for the assumption of jurisdiction over suits brought in an international court against a State by an individual from a Member State.” Malcolm Lukwiya v. Att’y Gen. of Uganda, Ref. No. 6 of 2015, at 16-17 (Nov. 27, 2018).

The requirement that litigants exhaust local remedies before seeking international refuge exists, in part, because “a state should be given an opportunity to address an alleged wrong within the framework of its own domestic legal system before its international responsibility can be called into question” unless “the domestic remedy is unavailable or may result in[] undue delay.” Emmanuel Mwakisha Mjawasi & 748 Others v. Att’y Gen. of Kenya, Ref. No. 2 of 2010, at 7 (Sept. 29, 2011)

.

There is no express Treaty provision explicitly stating that the exhaustion of local remedies is required before a litigant can seek remedy with the EACJ. Paul John Mhozya v. Att’y Gen. of Tanz., Ref. No. 2 of 2016, at 12 (June 27, 2018); Malcolm Lukwiya v. Att’y Gen. of Uganda, Ref. No. 6 of 2015, at 17-18 (Nov. 27, 2018). Att’y Gen. of Rwanda v. Plaxeda Rugumba, Appeal No. 1 of 2012, at 15 (June 21, 2012); Plaxeda Rugumba v. Att’y Gen. of EAC & Other, Ref. No. 8 of 2010, at 21 (Dec. 1, 2011). In fact, “it is a principle well established in this Court, that a party need not exhaust local remedies before coming to this Court.” Henry Kyarimpa v. Att’y Gen. of Uganda, Ref. No. 4 of 2013, at 25 (Nov. 28, 2014).

This issue arose in Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 14 Others, Ref. No. 1 of 2006, at 21 (Mar. 30, 2007), where the respondent argued that because the Treaty expressly granted national courts the ability to interpret and apply a Treaty provision, the litigant must first turn to those courts. The Court rejected this argument, holding:

Article 33(2) appears to envisage that in the course of determining a case before it, a national court may interpret and apply a Treaty provision. Such envisaged interpretation, however, can only be incidental. The Article neither provides for nor envisages a litigant directly referring a question as to the interpretation of a Treaty provision to a national court. Nor is there any other provision directly conferring on the national courts jurisdiction to interpret the Treaty. Article 30 on the other hand, confers on a litigant resident in any Partner State the right of direct access to the Court for determination of the issues set out therein. We therefore, do not agree with the notion that before bringing a reference under Article 30, a litigant has to ‘exhaust the local remedy’ In our view there is no local remedy to exhaust.

Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 14 Others, Ref. No. 1 of 2006, at 21 (Mar. 30, 2007); Media Council of Tanz. & 2 Others v. Att’y Gen. of Tanz., Ref. No. 2 of 2017, at 17-21 (Mar. 28, 2019) (holding the Court had jurisdiction under Article 23 and 27 of the Treaty to entertain the reference arising under Article 30 of the Treaty while noting that the Treaty contains no local exhaustion requirement); James Alfred Koroso v. Att’y Gen. of Kenya & Other, Ref. No. 12 of 2014, at 14 (Mar. 24, 2016) (following EACJ precedent and declining to hold that the litigant is barred from bringing an Article 30 claim due to failure to exhaust local remedies); Malcolm Lukwiya v. Att’y Gen. of Uganda, Ref. No. 6 of 2015, at 20 (Nov. 27, 2018) (holding that the Court had jurisdiction to entertain the reference under Article 30(1) to declare Treaty violations under Articles 6(d) and 7(2) and the litigant was not required to exhaust local remedies); Benoit Ndorimana v. Att’y Gen. of Burundi, Ref. No. 2 of 2013, at 9 (Nov. 28, 2014) (finding that the litigant was not required to exhaust local remedies); Anthony Calist Komu v. Att’y Gen. of Tanz., Ref. No. 7 of 2012, at 15 (Sept. 26, 2014) (holding that the reference filed with the EACJ instead of the local court was “not frivolous, vexatious, or an abuse of Court process” when alternative remedies were available because the reference involved an interpretation and application of the Treaty); Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Appeal No. 2 of 2011, at 16-17 (Mar. 16, 2012) (Appellate Division overruling First Instance Division’s decision requiring exhaustion of local remedies, because the relevant EACJ and local claims were not the same, as “[t]he cause of action before this Court is an alleged breach or infringement of the Treaty and not an arbitral award for breach of contract as in the Uganda courts. There is, therefore, no likelihood of a conflict or a clash between this Court and the courts of Uganda.”); Plaxeda Rugumba v. Att’y Gen. of EAC & Other, Ref. No. 8 of 2010, at 21 (Dec. 1, 2011) (“It is not in doubt that there is no express provision barring this Court from determining any matter that is otherwise properly before it, merely because the applicant has not exhausted Local remedies.”); Emmanuel Mwakisha Mjawasi & 748 Others v. Att’y Gen. of Kenya, Ref. No. 2 of 2010, at 7 (Sept. 29, 2011) (“Under Article 27(1) of the Treaty, matters requiring interpretation and application of the Treaty . . . are admissible [before] th[e EACJ]” and do not require local exhaustion (citing Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 14 Others, Ref. No. 1 of 2006, at 21 (Mar. 30, 2007))).

This is not to say that local proceedings are altogether irrelevant. For example, in Alcon Int’l Ltd v. Standard Chartered Bank of Uganda & 2 Others, the First Instance Division held that ongoing local proceedings during the course of the case’s progress through the EACJ eliminated the validity of a bank guarantee, and accordingly there was no “live dispute” for the EACJ to adjudicate. Ref. No. 6 of 2010, at 17 (Sept. 2, 2013). Moreover, the Court has stated that it would “express reservations about the . . . notion that a litigant who fails to secure relief from the national courts under Article 52 [(“Questions as to Membership of the Assembly”)] would have recourse to this Court to seek the same relief.” Prof.Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 2 Others, Ref. No. 1 of 2006, at 22 (Mar. 30, 2007).

iv. Personal Injury

A claimant does not have to show that the matter complained of caused damage to a right or interest proper to them. Att’y Gen. of Rwanda v. Union Trade Ctr. Ltd. (UTC) & 19 Others, Appeal No. 2 of 2018, at 14 (May 29, 2019) (unlike at common law, “whereby the person seeking relief would have to demonstrate a right or interest that has been violated and the liability of the Defendant therefor,” a “cause of action, in the jurisprudence of this Court, exists where there is a contention that the matter complained of violates the national law of a Partner State or infringes any provision of the Treaty.”); Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2011, at 14 (Mar. 15, 2012) (aggrieved party bringing an action under Articles 28- 30 of the Treaty “does not have to demonstrate a personal tort, right, infringement, injury or damage specific to himself in order to refer the matter to this Court”); FORSC & 4 Others v. Att’y Gen. of Burundi & Other, Appl. No. 16 of 2016, at 9 (Jan. 23, 2018); Hon. Sitenda Sebalu v. Sec’y Gen. of EAC & 2 Others, Ref. No. 1 of 2010, at 19 (June 30, 2011); Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 2 Others, Ref. No. 1 of 2006, at 16 (Mar. 30, 2007) (“We are not persuaded that there is any legal basis on which this Court can import or imply such requirement into Article 30.”); Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 2 Others, Ref. No. 1 of 2006, at 36 (Mar. 30, 2007) (“[O]nce a question of infringement of the Treaty is properly referred to th[e] Court under Article 30, the question ceases to be of purely personal interest.”).

2. Respondents That Can Be Brought Before the Court

The “only proper respondent” to references under Article 30 of the Treaty are (i) Partner States or (ii) institutions of the EAC. Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Appeal No. 3 of 2013, at 18, (July 27, 2015 ; see also Modern Holdings (EA) Ltd. v. Kenya Ports Auth., Ref. No. 1 of 2008, at 6 (Feb. 12, 2009); Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 5 Others, Ref. No. 1 of 2006, at 7 (Nov. 27, 2006) (“A reference under Article 30 of the Treaty . . . is an action to challenge the legality under the Treaty of an activity of a Partner States or of institutions of the Community.”). The respondent must have a direct interest in the matter—if its interest would only be “peripheral and distant,” it cannot be sued as a respondent. Hon. Sitenda Sebalu v. Sec’y Gen. of EAC & 2 Others, Ref. No. 1 of 2010, at 46 (June 30, 2011) (rejecting applicant’s argument that Hon. Sam K. Njuba and the Electoral Commission of Uganda were proper respondents because they were respondents in the prior proceedings in Uganda and would be affected by the outcome of the case and holding that their joinder was premature as there were no substantive prayers against them).

i. Partner States

In bringing an action against a Partner State, the claimant may properly name the Attorney General of that Partner State as a respondent. Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Ref. No. 6 of 2010, at 15 (Sept. 2, 2013). Other officers of a Partner State cannot be named as respondents. Paul John Mhozya v. Att’y Gen. of Tanz., Ref. No. 2 of 2016, at 22 (June 27, 2018) (rejecting service of notice of intention to sue on President of Tanzania in analysis of whether applicant timely commenced proceedings); Indep. Med. Unit v. Att’y Gen. of Kenya & 4 Others, Ref. No. 3 of 2010, at 7-8 (June 29, 2011) (ruling that joinder of the Minister for Internal Security of Kenya, the Chief of General Staff of Kenya and the Commissioner of Police of Kenya was improper on the basis that they were “merely officers employed in the Republic of Kenya” and noting that “[t he correct party [wa]s the Attorney General.”); Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 5 Others, Ref. No. 1 of 2006, at 6 (Nov. 27, 2006) (upholding objection to the joinder of the Clerk to the National Assembly of the Republic of Kenya, the Vice-President of Kenya, and the leader of a Kenyan political party). Additionally, claims against non-Partner States of the Community will be struck out. Rashid Salum Adiy & 39,999 Others v. Att’y Gen. of the Revolutionary Gov’t of Zanzibar & 2 Others, Ref. No. 9 of 2016, at 9 (Sept. 29, 2020) (striking out the claim against Zanzibar as “[i]t is clear that Zanzibar is neither a Partner State nor an institution of the Community . . . [thus] neither Zanzibar nor any of its officials have locus standi before this Court”).

Partner States can also be held accountable for the conduct of their organs. Hassan Basajjabalaba & Other v. Att’y Gen. of Uganda, Appl. No. 9 of 2018, at 20 (Mar. 27, 2019). This is the principle of attribution. Manariyo Desire v. Att’y Gen. of Burundi, Ref. No. 8 of 2015, at 11 (Dec. 12, 2016). “[O]f prime importance” in “determining what constitutes an organ of a State for the purposes of responsibility, [is] the . . . practice of each State,” which is taken into consideration alongside “the internal law . . . of each State.” Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Ref.No. 10 of 2013, at 12, 17 (Nov. 27, 2014) (citing Article 4(6) of the Treaty (“[T]he internal law in question must specifically authorize the conduct as involving the exercise of public authority; it is not enough that it permits activity as part of the general regulation of the affairs of the community. It is accordingly a narrow category.”)).

Whereas the Treaty defines what obligations a Partner State may have breached, the International Law Commission Articles “enable the Court [to] determine whether the action or conduct in alleged contravention of a Treaty provision can be attributed to a Partner State.” Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Ref. No. 10 of 2013, at 9-10 (Nov. 27, 2014).

Article 4(1) of the ILC Articles attributes the conduct of an organ of a State to that State regardless of whether that organ exercises a legislative, executive, judicial or other function. However, Article 4(2) defines an organ, the conduct of which would be attributable to a State . . . [recognizing the] applicability of a State’s internal law [in making] a determination of whether or not a party whose conduct is in issue is, in fact, an organ of the State.

Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Ref. No. 10 of 2013, at 12 (Nov. 27, 2014).

Attribution applies to “de jure organs which have been expressly entitled to act for the State within the limits of their competence.” Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Ref. No. 10 of 2013, at 13 (Nov. 27, 2014). But “the structural form of an entity” is not necessarily the decisive “basis for determining whether it did, in fact, exercise elements of governmental authority.” Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Ref. No. 10 of 2013, at 16 (Nov. 27, 2014). Even if the entity is not a de jure organ of the State, the State can still be responsible if the entity is “empowered to exercise elements of governmental authority.” Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Ref. No. 10 of 2013, at 14 (Nov. 27, 2014). “The issue of empowerment is question of fact that must be duly established.” Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Ref. No. 10 of 2013, at 17 (Nov. 27, 2014). The Court can look at the legislative authority for the entity or individual in question and then look at whether internal law “demarcates . . . [that] function [to] the State” as well. Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Ref. No. 10 of 2013, at 18 (Nov. 27, 2014) (finding that attribution applied to the Kigali City Abandoned Property Management Commission because it “was empowered to exercise a function that would otherwise have been a governmental function.”), overturned in Union Trade Ctr. Ltd (UTC). v. Att’y Gen. of Rwanda, Ref. No. 2 of 2015 (Nov. 20, 2015) (process for determining UTC’s organ-status was proper, but determination was incorrect since UTC was empowered to exercise governmental authority as an organ of the City of Kigali, a local government).

ii. Institutions of the EAC

Institutions of the EAC that can properly be sued as respondents before the Court must be either (1) among the institutions of the East African Community as established by the Summit and defined under Article 9(2) of the Treaty, or (2) a surviving institution of the former EAC as enumerated under Article 9(3) of the Treaty. Modern Holdings (EA) Ltd. v. Kenya Ports Auth., Ref. No. 1 of 2008, at 10-11 (Feb. 12, 2009) (citing Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 5 Others, Ref. No. 1 of 2006, at 7 (Nov. 27, 2006)).

The mere fact that an institution renders services to the East African Partner States and citizens, “does not ipso facto make it an institution of the Community. In order to qualify as a service under Article 9(2) of the Treaty, the service must be such a service created by the Summit.” Modern Holdings (EA) Ltd. v. Kenya Ports Auth., Ref. No. 1 of 2008, at 11 (Feb. 12, 2009) (holding that the Kenya Ports Authority is not an institution of the Community as envisaged under Article 30 of the Treaty); E. Afr. Civil Soc’y Org. Forum v. Att’y Gen. of Burundi & 2 Others, Ref. No. 2 of 2015, at 21-22 (Sept. 29, 2016) (striking the Commission Electoral Nationale Indépendante, independent electoral commission of Burundi, from the proceedings because it was neither a Partner State nor an institution of the EAC, noting that “[i]t cannot also be said that merely because [an entity] is such an Institution of a Partner State then it can be equated to . . . a Partner State.”).

Under Article 37(2) of the Treaty and Rule 19(4) of the 2019 Rules, the Counsel to the Community (CTC) has locus standi to represent the EAC and its institutions before the Court. Prof. Elias Bizuru v. Inter-Univ. Council of E. Afr. (IUCEA), Appl. No. 10 of 2018, at 6 (July 5, 2019) (holding the CTC may properly represent the Inter-University Council for East Africa (IUCEA)). The CTC cannot, however, delegate this function to someone not employed by the CTC. Prof. Elias Bizuru v. Inter-Univ. Council of E. Afr. (IUCEA), Appl. No. 10 of 2018, at 7 (July 5, 2019) (rejecting the argument that the CTC could properly delegate its capacity to represent the IUCEA to the Senior Legal Officer of the IUCEA).

The EAC, which is an international organization, possesses “international legal personality,” meaning the Community “bears rights and duties at international law and is responsible for the non fulfillment of its obligations.” Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Appeal No. 2 of 2017, at 19-20, 21 (May 25, 2018) (finding the EALA’s illegal removal of its Speaker to be an “internationally wrongful act . . . which entails the Community’s international responsibility”). This responsibility is embodied in the International Law Commission’s Draft Articles on the Responsibility of International Organizations, with Commentaries, 2011. Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Appeal No. 2 of 2017, at 20-22 (May 25, 2018) (relying on Draft Article 33 to support holding the EACJ has the inherent power to determine the legal consequences of an internationally wrongful act attributable to the Community). “[A]ll [organs] are united under the corporate status of the [EAC] . . . ‘Legally, the organs are not corporate entities but are components of the Community which is the corporate body. Ordinarily, an act of an organ in discharging its functions is an act of the corporate Community.’” Patrick Ntege Walusumbi & 2 Others v. Att’y Gen. of Uganda & 5 Others, Ref. No. 8 of 2013, at 24 (Feb. 27, 2015). Under Article 9(1)(h) of the Treaty, any other organs established by the Summit will also constitute organs of the EAC.

3. Subject Matter of a Reference Over what subject matters does the Court have legal authority to administer justice (i.e. what is the scope of the Court’s jurisdiction)?

Under the Treaty the Court has authority to administer justice over the following matters:

The Court has jurisdiction (i.e. authority) over the interpretation and application of the Treaty. However, the Court has no authority to interpret the rights and powers expressly conceded by the Treaty to organs of any Partner States [Article 27(1)].

In the future, the Court may be granted extended jurisdiction over other subject matter. Such extension will require decision(s) of the Council of Ministers of the Community. On 30 th November, 2013, the Summit of the EAC Heads of State approved the Council of Ministers’ decision to extend the Court’s jurisdiction to include matters of trade, investment and the EAC Monetary Union. To this end, the Partner States will need to agree on a protocol to operationalize the extended jurisdiction [Article 27(2)].

In addition, the EACJ has the jurisdiction to hear and determine:

(1) Disputes involving a Partner State’s failure to fulfil its Treaty obligations, or infringement of Treaty provision(s), including the legality of any law or action of the Partner State which does not conform to the Treaty; or where a Partner State refers the matter directly to the Court [Article 28] ─ after the Council of Ministers has failed, in the first place, to resolve the dispute. [Article 29].

(2) Reference by legal persons (i.e. entities other than human individuals) or natural persons (individuals) who are resident in any Partner State, who wish to challenge the legality of actions of a Partner State or of the Community as infringing the Treaty [Article 30].

(3) Disputes between the Community and its employees arising from the terms and conditions of employment or the interpretation and application of the staff rules and regulations [Article 31].

(4) Disputes involving the Community, the Partner States or others regarding the Treaty or a commercial contract, if the dispute is submitted to the Court under a special arbitration agreement or arises out of an arbitration clause contained in a contract or agreement conferring such jurisdiction on the Court [Article 32].

(5) Requests made to the Court by the Partner States’ national courts for preliminary rulings on the interpretation of the Treaty [Article 34].

Requests for advisory opinions on Treaty questions affecting the Community [Article 36].

A reference can be initiated on any subject over which the Court has jurisdiction ratione materiae, which refers to “the power of the Court to entertain and decide on the subject matter of the Complaint before it.” Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Appeal No. 3 of 2013, at 15 (July 27, 2015). Jurisdiction ratione materiae is established “where it was averred on the face of the parties’ pleadings that the matter complained of constituted an infringement of the Treaty.” M/S Quick Telecomms. Servs. v. Att’y Gen. of Tanz., Ref. No. 10 of 2016, at 18 (July 3, 2019) (citing Hon. Sitenda Sebalu v. Sec’y Gen. of EAC & 2 Others, Ref. No. 1 of 2010 (June 30, 2011)); James Alfred Koroso v. Att’y Gen. of Kenya & Other, Ref. No. 12 of 2014, at 13 (Mar. 24, 2016); Baranzira Raphael & Other v. Att’y Gen. of Burundi, Ref. No. 15 of 2014, at 10 (Mar. 22, 2016); Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 5 Others, Ref. No. 1 of 2006 (Nov. 27, 2006); Rashid Salum Adiy & 39,999 Others v. Att’y Gen. of the Revolutionary Gov’t of Zanzibar & 2 Others, Ref. No. 9 of 2016, at 9-10 (Sept. 29, 2020); Erick Kabalisa Makala v. Att’y Gen. of Rwanda, Ref. No. 1 of 2017 (June 18, 2020), at 8.

Read together with Articles 23 and 27(1) of the Treaty, Article 30(1) of the Treaty gives the Court jurisdiction ratione materiae “to determine whether or not, an act, regulation, directive, decision or action of a Partner State is unlawful or is an infringement of the provisions of the Treaty.” Venant Masenge v. Att’y Gen. of Burundi, Appl. No. 5 of 2013, at 9 (June 18, 2014); see Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 5 Others, Ref. No. 1 of 2006, at 5 (Nov. 27, 2006). As stated above, a claimant need not show a right or interest that was infringed and/or damage that was suffered as a consequence of the matter complained of in the Reference in question. Hon. Sitenda Sebalu v. Sec’y Gen. of EAC & 2 Others, Ref. No. 1 of 2010, at 19 (June 30, 2011). See also Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2011, at 14 (Mar. 15, 2012); Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 2 Others, Ref. No. 1 of 2006, at 16-17 (Mar. 30, 2007). All that is required is a “legal nexus between the Applicant’s allegations and the existence of positive provisions in the Treaty, and elsewhere, that impose on the Partner States an obligation, a duty, or an undertaking that binds the Partner States to do or to withhold from doing or engaging in certain acts; or to observe certain standards or behaviour.” Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2011, at 13 (Mar. 15, 2012).

ARTICLE 23 - Role of the Court

1. The Court shall be a judicial body which shall ensure the adherence to law in the interpretation and application of and compliance with this Treaty.

2. The Court shall consist of a First Instance Division and an Appellate Division.

3. The First Instance Division shall have jurisdiction to hear and determine, at first instance, subject to a right of appeal to the Appellate Division under Article 35A, any matter before the Court in accordance with this Treaty.

ARTICLE 27 - Jurisdiction of the Court

1. The Court shall initially have jurisdiction over the interpretation and application of this Treaty:

.

Provided that the Court’s jurisdiction to interpret under this paragraph shall not include the application of any such interpretation to jurisdiction conferred by the Treaty on organs of Partner States

2. The Court shall have such other original, appellate, human rights and other jurisdiction as will be determined by the Council at a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalise the extended jurisdiction.

Article 30(1) of the Treaty also confers jurisdiction ratione materiae to the Court to resolve any allegations of inconsistencies between articles within the Treaty. Steven Deniss v. Att’y Gen. of Burundi & 5 Others, Ref. No. 3 of 2015, at 13 (Mar. 31, 2017). Accordingly, the Court has jurisdiction to interpret Treaty provisions, Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Ref. No. 10 of 2013, at 27 (Nov. 27, 2014), and to “‘ensur[e] adherence to the law in the application of and compliance with the Treaty,’” Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Appeal No. 2 of 2017, at 18 (May 25, 2018) (citing Article 23(1) of the Treaty). The Court does not have jurisdiction to amend the Treaty. Steven Deniss v. Att’y Gen. of Burundi & 5 Others, Ref. No. 3 of 2015, at 12 (Mar. 31, 2017).

i. Good Governance, Rule of Law, and Due Process

Where the Court has exercised jurisdiction over acts of a Partner State involving alleged infringement of the Partner State’s own laws, most often it has been to determine whether there has been a violation of the principles of good governance, the rule of law, and due process set forth in Articles 6(d) and 7(2) of the Treaty. E.g., FORSC & 4 Others v. Att’y Gen. of Burundi & Other, Appl. No. 16 of 2016, at 9 (Jan. 23, 2018) (a Ministerial Ordinance banning 5 nonprofit organizations and freezing their bank accounts gave rise to a cause of action concerning the legality of the Ministerial Ordinance under Articles 6(d) and 7(2) of the Treaty).

Observance of the Rule of law restrains the arbitrary will of the strong, it is the sure protection of all, it equalizes the unequal, it is the antithesis of arbitrariness, and it is the nemesis of anarchy. Without the Rule of Law, justice, peace and security would be mere chimeras. In light of that, it is clear that observance of the Rule of Law is the premier value of the East African Community. Disregard of it will torpedo the ship of regional integration.

Henry Kyarimpa v. Att’y Gen. of Uganda, Appeal No. 6 of 2014, at 41 (Feb. 19, 2016); Baranzira Raphael & Other v. Att’y Gen. of Burundi, Ref. No. 15 of 2014, at 24 (Mar. 22, 2016); Rt. Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Ref. No. 17 of 2014, at 15 (Nov. 6, 2015) (“[T]he notion of rule of law hinges on the basic premise that no single person (natural, corporate or otherwise) is above the law, the rulers and the governed both being equally subject to the law of the land.” (citing James Katabazi & 21 Others v. Sec’y Gen. of EAC & Other, Ref. No. 1 of 2007, (Nov. 1, 2007))); Godfrey Magezi v. Att’y Gen. of Uganda, Ref. No. 5 of 2013,at 27–28 (May 14, 2015) (“Rule of law implies that every citizen is subject to the law including the lawmakers.”); Mary Ariviza & Other v. Att’y Gen. of Kenya & Other, Ref. No. 7 of 2010, at 22 (Nov. 30, 2011) (“The ‘rule of law’ . . . refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated . . . It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law . . . legal certainty, avoidance of arbitrariness and procedural and legal transparency.” (quoting UN Secretary-General in his report of 23rd August, 2004 to the Security Council (http://dacess-dds-ny.un.org/doc/UNDOC/GEN/04/395/29/pdf Open Element)); see also Manariyo Desire v. Att’y Gen. of Burundi, Ref. No. 8 of 2015, at 29 (Dec. 2, 2016) (discussing the same elements of rule of law); Rwenga Etienne & Other v. Sec’y Gen. of EAC, Ref. No. 7 of 2015, at 31 (Mar. 23, 2016) (elimination of potential candidates from Rwanda and Tanzania for EACJ Registrar job opening “was neither discriminatory nor a violation of Article 6(d) of the Treaty.”).

Due process is “the conduct of legal proceedings according to established rules and principles for the protection of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case.” Samuel Mukira Mohochi v. Att’y Gen. of Uganda, Ref. No. 5 of 2011, at 34 (May 17, 2013) (citing Due Process, Black’s Law Dictionary (2014) (supra) at 575); Mary Ariviza & Other v. Att’y Gen. of Kenya & Other, Ref. No. 7 of 2010, at 22 (Nov. 30, 2011) (“‘[D]ue process’ and ‘due process of law’ mean following laid down laws and procedures” (citing Lord Denning, The Due Process of Law, (2nd ed., Butterworths) (1980))). “[B]asic indicators of due process,” which are “hall marks of the rule of law” include the “duty to give the Applicant sufficient reasons” for a decision that infringes upon an individual’s rights, “a duty to afford him [or her] a fair opportunity to be heard, and . . . [a duty] to take into consideration whatever he [or she] had to say.” Samuel Mukira Mohochi v. Att’y Gen. of Uganda, Ref. No. 5 of 2011, at 36 (May 17, 2013).

“[R]espect for due court process is an important tenet of respect for and observation of the rule of law and good governance principles.” Rt. Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Ref. No. 17 of 2014, at 15 (Nov. 6, 2015); Venant Masenge v. Att’y Gen. of Burundi, Ref. No. 9 of 2012, at 18-19 (June 18, 2014) (finding that no due process had been shown to have been taken by the government, therefore there was a breach of “good governance including in particular, the principles of adherence to the rule of law, and the promotion and protection of human rights”); Mary Ariviza & Other v.Att’y Gen. of Kenya & Other, Ref. No. 7 of 2010, at 21 (Nov. 30, 2011) (“‘[D]ue process of law’ is a component of the principle of ‘the rule of law’ as generally understood in Anglo-American jurisprudence.”).

When deciding a question of due process, “[w]hether [a] decision was right or wrong” is not the measure of due process. Mary Ariviza & Other v. Att’y Gen. of Kenya & Other, Ref. No. 7 of 2010, at 24 (Nov. 30, 2011). Instead, any deprivation of rights guaranteed either by the Treaty or applicable Partner State law, which is “imposed by an order of the court,” where the deprivation is riddled with “procedural irregularities” amounts “to lack of procedural due process[.]” E. Afr. Law Soc’y v. Att’y Gen. of Burundi & Other, Ref. No. 1 of 2014, at 30-31 (May 15, 2015).

The principles of the EAC set forth in Articles 6-8 of the Treaty are justiciable before the national courts and tribunals of Partner States because they “stand deeper, larger and loftier than ‘mere aspirations.’” Ref. for a Preliminary Ruling under Article 34 of the Treaty Made By the High Court of Uganda in the Proceedings between the Att’y Gen. of Uganda & Tom Kyahurwenda, Case Stated No. 1 of 2014, at 27-28 (July 31, 2015); Samuel Mukira Mohochi v. Att’y Gen. of Uganda, Ref. No. 5 of 2011, at 10, 18 (May 17, 2013) (rejecting the respondent’s argument that the principle of good governance espoused in Article 6(d) of the Treaty represents “aspirations and broad policy provisions for the Community which are futuristic and progressive in application” and holding that the EAC Partner States intended the Article to entail “actionable obligations, breach of which gives rise to infringement of the Treaty”); see also James Katabazi & 21 Others v. Sec’y Gen. of EAC & Other, Ref. No. 1 of 2007, at 23 (Nov. 1, 2007) (holding that “the intervention by armed security agents of Uganda to prevent execution of a lawful court order violated the principle of the rule of law and consequently contravened the Treaty.”).

Indeed, these principles are “truly fundamental- solemn, sacred and sacrosanct. They are the rock foundation, upon which the solid pillars of the Treaty, the Community and the Integration agenda are constructed.” Ref. for a Preliminary Ruling under Article 34 of the Treaty Made By the High Court of Uganda in the Proceedings between the Att’y Gen. of Uganda & Tom Kyahurwenda, Case Stated No. 1 of 2014, at 27-28 (July 31, 2015). Violations are justiciable because the principles are intended to be binding on Partner States—”cogent evidence” of this are “the stiff penalties established in Articles 146(1) and 147(2) of the Treaty for any Partner State which, ‘fails to observe and fulfil the fundamental principles and objectives of the Treaty’ or which grossly and persistently violates the ‘principles and objectives of the Treaty.’” Ref. for a Preliminary Ruling under Article 34 of the Treaty Made by the High Court of Uganda in the Proceedings between the Att’y Gen. of Uganda & Tom Kyahurwenda, Case Stated No. 1 of 2014, at 27 (July 31, 2015) (citing Samuel Mukira Mohochi v. Att’y Gen. of Uganda, Ref. No. 5 of 2011 (May 17, 2013)); The Managing Editor, Mseto & Other v. Att’y Gen. of Tanz., Ref. No. 7 of 2016, at 33 (June 21, 2018) (“[T]he provisions of Article 6(2) and 7(d) as well as 8(1) [of] the Treaty . . . are binding and not merely aspirational. The provisions are justiciable and create an obligation to every Partner State to respect those sacrosanct principles of good governance, and rule of law which include accountabilitiy, transparency and the promotion and protection of democracy.”).

In conducting these analyses, the Court may need to consider the internal law of the Partner State. Henry Kyarimba v. Att’y Gen. of Uganda, Appeal No. 6 of 2014, at 30 (Nov. 28, 2014) (describing the Court’s “inescapable duty” to consider Partner State internal laws as required). However, the Court cannot intervene based on Articles 6(d) or 7(2) of the Treaty if the requisite facts have not been established that would allow the Court to find that a Partner State violated its own internal laws and, therefore, breached its Treaty obligation to observe the rule of law. See Simon Peter Ochieng & Other v. Att’y Gen. of Uganda, Ref. No. 11 of 2013, at 32 (Aug. 7, 2015) (“[T]he practice of due diligence checks [(regarding judicial appointments)] cannot be said to violate the principles of rule of law or good governance as stipulated in Articles 6(d) and 7(2) of the Treaty”) (appeal dismissed in Simon Peter Ochieng & Other v. Att’y Gen. of Uganda, Appeal No. 4 of 2015 (Nov. 24, 2016)); Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Ref. No. 10 of 2013, at 28 (Nov. 27, 2014) (finding that the question of whether or not the respondent’s actions were in compliance with Rwanda’s internal laws was not a matter of Treaty interpretation, and therefore outside of the Court’s jurisdiction).

To the extent that a Partner State’s breach of other Treaty provisions amounts to a violation of its own internal laws, the Court may correspondingly find a violation of Articles 6(d) and 7(2) of the Treaty. Henry Kyarimpa v. Att’y Gen. of Uganda, Appeal No. 6 of 2014, at 5-6, 29-30 (Feb. 19, 2016) (ruling that Uganda’s contract process for construction of the Karuma Dam breached Uganda’s own Procurement Regulations, and accordingly breached the principles of rule of law and good governance inconsistent with Articles 6(c), 6(d), and 7(2) of the Treaty); FORSC & 4 Others v. Att’y Gen. of Burundi & Other, Appl. No. 16 of 2016, at 9 (Jan. 23, 2018) (“It is trite law in EAC Community Law that non-compliance with a Partner State's national laws amounts to a violation of the principle of the rule of law enshrined in Article 6(d) and is, to that extent, a violation of the Treaty.”); Godfrey Magezi v. Att’y Gen. of Uganda, Ref. No. 5 of 2013, at 7 (May 14, 2015) (by “acting within [the limitations of designated] constitutional powers,” whether that means “issuing [a] legal opinion,” “evaluating . . . recommendations for their appropriate implementation,” and ultimately “discontin[uing] proceedings as provided under” domestic law, government “cannot be said to have contravened the principles of good governance, democracy and rule of law”); Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Ref. No. 10 of 2013, at 27 (Nov. 27, 2014) (following generally Samuel Mukira Mohochi v. Att’y Gen. of Uganda, Ref. No. 5 of 2011 (May 17, 2013)) (finding that Uganda had given the Treaty, including Annexes and Protocols, the force of law pursuant to Section 3(1) of the East African Community Act, and accordingly Uganda’s denial of entry to a Kenyan citizen at its airport, without explanation, was a breach of the Treaty’s provisions governing immigration, Ugandan immigration laws, and due process under Articles 6(2) and 7(d) of the Treaty); Venant Masenge v. Att’y Gen. of Burundi, Ref. No. 9 of 2012, at 20 (June 18, 2014) (Minister of Home Affairs did not respond to applicant’s request to be restored to his land; the Court held Government of Burundi vicariously responsible for action of Mayor and inaction of Minister of Home Affairs and declared these actions to be in violation of Article 6(d) of the Treaty); Plaxeda Rugumba v. Att’y Gen. of EAC & Other, Ref. No. 8 of 2010, at 28 (Dec. 1, 2011) (ruling that Rwanda’s illegal detention of a prisoner did not abide by Rwanda’s own Penal Laws and Procedures, violating the rule of law and the Treaty); James Katabazi & 21 Others v. Sec’y Gen. of EAC & Other, Ref. No. 1 of 2007, at 23 (Nov. 1, 2007) (finding that the intervention by the armed security agents of Uganda to prevent the execution of a lawful Court order violated the principle of the rule of law and consequently contravened the Treaty); Hon. Justice Malek Mathiang Malek v. Minister of Justice of S. Sudan & Other, Ref. No. 9 of 2017 (July 24, 2020), at 15 (A decree removing the Applicant from office breached the Constitution and Judiciary Act of 2008 of South Sudan and consequently Articles 6(d) and 7(2) of the EAC Treaty).

The Court similarly has jurisdiction to decide whether a law passed by a Partner State contravenes the Treaty. Baranzira Raphael & Other v. Att’y Gen. of Burundi, Ref. No. 15 of 2014, at 12- 13 (Mar. 22, 2016) (ruling that the Court had jurisdiction to determine whether Burundian legislation upheld by the Constitutional Court of Burundi contravened Articles 6(d) and 7(2) of the Treaty); Among A. Anita v. Att’y Gen. of Uganda & Other, Ref. No. 6 of 2012, at 19-20 (Nov. 29, 2013) (EACJ had jurisdiction to evaluate whether Uganda’s newly enacted parliamentary rules of procedure conflicted with the Treaty).

Some of the Court’s jurisprudence suggests that it also has jurisdiction to intervene where an impugned act violates any domestic or international law. British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Ref. No. 7 of 2017, at 14 (Mar. 26, 2019); Simon Peter Ochieng & Other v. Att’y Gen. of Uganda, Ref. No. 11 of 2013, at 9 (Aug. 7, 2015). As with violations of Partner State domestic laws, the Court has jurisdiction over alleged violations of international treaties to the extent that they also implicate a violation of the EAC Treaty. See Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2014, at 17-19 (July 29, 2014) (Court did not have jurisdiction to evaluate or assess alleged violations of other International Conventions and Declarations but could consider aspects of other international instruments insofar as they inform the standards, norms, and values to which EAC Partner States subscribe); Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Ref. No. 10 of 2013, at 7 (Nov. 27, 2014) (finding that the ILC Articles on State Responsibility, as customary international law, apply to disputes brought before the Court, including matters that are not inter-State disputes and are initiated by a corporation); The Democratic Party v. Sec’y Gen. of EAC & 4 Others, Ref No. 2 of 2012, at 19-20 (Nov. 29, 2013) (Court had jurisdiction to decide whether Uganda, Kenya, Rwanda, Burundi, and EAC’s failure to make individual country declarations accepting the competence of the African Court on Human Rights as required by the African Charte constituted a violation of the Treaty).

Article 130 of the Treaty expressly contemplates the interaction between the Treaty and other international obligations:

ARTICLE 130 – International Organisations and Development Partners

1. The Partner States shall honour their commitments in respect of other multinational and international organisations of which they are members.

2. The Partner States reiterate their desire for a wider unity of Africa and regard the Community as a step towards the achievement of the objectives of the Treaty Establishing the African Economic Community.

Article 6(d) of the Treaty specifically recognises the relevance of the African Charter on Human And People’s Rights (the “African Charter”):

ARTICLE 6 – Fundamental Principles of the Community

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;

Accordingly, the Court has held that compliance with the African Charter is an obligation imposed on Partner States under the Treaty. The Democratic Party v. Sec’y Gen. of EAC & 4 Others, Appeal No. 1 of 2014, at 23-24 (July 28, 2015). More generally, the EACJ is not precluded from referring to the African Charter, its Protocol, and/or the Vienna Convention on the Law of Treaties in order to interpret the EAC Treaty. The Democratic Party v. Sec’y Gen. of EAC & 4 Others, Appeal No. 1 of 2014, at 23-24 (July 28, 2015).

However, the Court still “cannot purport to operate outside the framework of the Treaty and usurp the powers of other organs created for the enforcement of obligations created by other instruments including the African Charter and Protocol.” Afr. Network for Animal Welfare (ANAW) v. Att’y Gen. of Tanz., Ref. No. 9 of 2010, at 19 (June 20, 2014); see also The Democratic Party v. Sec’y Gen. of EAC & 4 Others, Ref. No. 2 of 2012, at 27-28 (Nov. 29, 2013) (holding that the failure of certain African states to deposit their declarations as required under Article 34(6) of the African Charter and Protocol did not amount to a violation of the Treaty as the African Charter and Protocol did not obligate the states to deposit the instruments within a certain timeframe) (affirmed in The Democratic Party v. Sec’y Gen. of EAC & 4 Others, Appeal No. 1 of 2014, at 20 (July 28, 2015 ).

Although the Court does not have appellate jurisdiction to review the decisions of National Courts, it does have jurisdiction to determine whether a decision by a National Court constitutes an infringement of the Treaty. Henry Kyarimpa v. Att’y Gen. of Uganda, Appeal No. 6 of 2014, at 37-38 (Feb. 19, 2016); see also M/S Quick Telecomms. Servs. v. Att’y Gen. of Tanz., Ref. No. 10 of 2016, at 19 (July 3, 2019) (rejecting the argument that such jurisdiction would be giving the EACJ an impermissible appellate function over Partner State supreme courts; but finding no violation of due process under the Treaty because the appropriate legal recourse for the applicant, who took issue with a decision by the Judges Ethics Committee, should have been to file a case before the High Court of Tanzania); Manariyo Desire v. Att’y Gen. of Burundi, Ref. No. 8 of 2015, at 20 (Dec. 2, 2016) (noting a “clear distinction between what constitutes an appellate review of a subordinate court’s decision, and the dialectical judicial approach that is synonymous with the international review of domestic judgments.”).

ii. EALA Election Procedure

The Court does not have jurisdiction over EALA election results but does have some jurisdiction over the EALA election process. See Antony Calist Komu v. Att’y Gen. of Tanz., Ref. No. 7 of 2012, at 17 (Sept. 26, 2014) (Court lacks jurisdiction to “annul the elections held by the National Assembly” of a member state as these matter are left to the courts of Partner States (quoting Christopher Mtikila v. Att’y Gen. of Tanz. & Other, Ref. No. 2 of 2007, at 12–13 (Apr. 25, 2007))); The Court’s jurisdiction over the EALA election process “is limited to determining whether the criteria” in a Partner State’s election rules is “consistent with Article 50 of the Treaty.” Antony Calist Komu v. Att’y Gen. of Tanz., Ref. No. 7 of 2012, at 34 (Sept. 26, 2014); see also Wani S. Jada v Att’y Gen. of South Sudan, Appl. No. 8 of 2017, at 4 (June 5, 2017) (determining that “[o]n the face of the record . . . it does appear . . . that the provisions of Article 50(1) of the Treaty may not have been followed in the election of the nine (9) South Sudan nominees to the 4 th Assembly of EALA”). Whether a candidate or member is “otherwise properly elected or not is a matter to be determined” by national courts. Antony Calist Komu v. Att’y Gen. of Tanz., Ref. No. 7 of 2012, at 34 (Sept. 26, 2014); Christopher Mtikila v. Att’y Gen. of Tanz. & Others, Ref. No. 2 of 2007, at 11–13 (Apr. 25, 2007) (finding no EACJ jurisdiction over application challenging EALA elections held by the National Assembly of Tanzania where the applicant sought to have two individuals “recognized as Members of the Legislative Assembly [and] to drop two out of the nine”); Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 2 Others, Ref. No. 1 of 2006, at 30 (March 29, 2007) (exercising jurisdiction to rule that Kenya’s delegation of election procedure to a separate committee did not comply with Article 50 of the Treaty because “the discretion of determining the procedure of electing the [EALA] representatives [does not] include[] an option for the National Assembly to assign the function to any other body”).

iii. Equal Opportunity, Equal Distribution, and Discrimination

“[T]he concept of equal opportunity is wont to curtail discrimination in a person’s access to social services on account of numerous factors including age, gender, race creed etc.” British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Ref. No. 7 of 2017, at 33-34 (Mar. 26, 2019) (finding that a tobacco company had been disadvantaged in its “cross-border cigarette-sale activities,” however, because “the dispute in issue herein accrue[d] from a purely commercial transaction as opposed to the socio-political thrust of the considerations inherent in the notion of equal opportunities,” there was no violation of Article 6(d) of the Treaty).

Relatedly, “the term ‘equitable distribution’ . . . would, in its literal sense, denote a fair and just allotment that seeks to redress apparent imbalances . . . [and] the elimination of imbalances that could accrue from the very existence of the EAC that are not necessarily trade-related.” British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Ref. No. 7 of 2017, at 34, 35–36 (Mar. 26, 2019) (ruling, however, that “[t]o suggest that the equitable interventions that are envisaged under Article 6(e) could accrue to commercial transactions would, in our judgment, be to run afoul of Article 7(1)(a) of the Treaty, which seeks to entrench a ‘market-driven cooperation’ in the EAC.”).

[D]iscrimination occurs where there is any distinction, exclusion, restriction or preference based on any ground such as race, sex, national or social origin, and which has the effect of nullifying or impairing the recognition, enjoyment or exercise by all persons on an equal footing of all rights and freedoms - (see UN Human Rights Committee General Comment 18.7). We also note that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a legitimate purpose - (See General Comment No.18.13 (supra)).

Alice Nijimbere v. Sec’y Gen. of EAC, Ref. No. 7 of 2015, at 18-19 (Mar. 23, 2016) (finding that denial of applicant’s request to face interviewers in the seat of the EAC because of a sick daughter was not discriminatory (affirmed by Alice Nijimbere v. Sec’y Gen. of EAC, Appeal No. 1 of 2016, at 28 (Dec. 2, 2016))).

iv. Freedom Of The Press

“[T]here is no doubt that freedom of the press and freedom of expression are essential components of democracy.” Burundian Journalists Union v. Att’y Gen. of Burundi, Ref. No. 7 of 2013, at 27 (May 15, 2015); The Managing Editor, Mseto & Other v. Att’y Gen. of Tanz., Ref. No. 7 of 2016, at 18 (June 21, 2018) (“It is thus, not in doubt that the rights to freedom of expression and free press run in tandem, and as rights guaranteed and also limited under law, may nonetheless also be described as human and democratic rights and freedoms which Partner States should aspire to protect and promote through the enactment of national laws that achieve the objectives of good governance, more so the adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities and gender equality.”).governance, more so the adherence to the principles of democracy, the rule of law, accountability, transparency, social justice, equal opportunities and gender equality.”).

That is because “a government should not determine what ideas or information should be placed in the market place and, if it restricts that right, the restriction must be proportionate and reasonable.” The Managing Editor, Mseto & Other v. Att’y Gen. of Tanz., Ref. No. 7 of 2016, at 30 (June 21, 2018).

Nevertheless, “[f]reedom of the press has never been an absolute right in any democracy.” Burundian Journalists Union v. Att’y Gen. of Burundi Ref. No. 7 of 2013, at 34, 38, 39 (May 15, 2015) (holding that the Burundian press law requiring accreditation of foreign journalist did not violate Articles 6(d) or 7(2) of the Treaty, but that these articles were violated by the law’s “restrictions not to disseminate information on the stability of the currency, offensive articles or reports regarding public or private persons, information that may harm the credit of the State and national economy, diplomacy, scientific research and reports of Commissions of Inquiry by the State” and obligation that journalists “reveal their sources of information before the competent authorities” in situations where the information relates to State security, public order, defence secrets and the moral and physical integrity of one or more persons”); see also The Managing Editor, Mseto & Other v. Att’y Gen. of Tanz., Ref. No. 7 of 2016, at 18(June 21, 2018) (“[T]he rights of freedom of expression, and indeed press freedom . . . are guaranteed, but only within the strictures and/or confines of the law.”).

Freedom of the press can be limited only reasonably, rationally, and proportionally. Burundian Journalists Union v. Att’y Gen. of Burundi, Ref. No. 7 of 2013, at 36–37 (May 15, 2015). See also The Managing Editor, Mseto & Other v. Att’y Gen. of Tanz., Ref. No. 7 of 2016, at 18, 30-31 (June 21, 2018) (Partner State’s order directing a media publication to cease publication for three years was unreasonable, unlawful, and disproportionate inter alia because Attorney General failed to offer adequate justification; order was “ambiguous and not anchored in any provisions of law and [wa]s merely predicated upon the ‘opinion’ of the Minister”; and the publication “was not accorded a reasonable opportunity to respond); Media Council of Tanz. & 2 Others v. Att’y Gen. of Tanz., Ref. No. 2 of 2017, at 49 (Mar. 28, 2019) (“[C]ertain provisions” of Media Services Act were “in violation of the principles set out in Articles 6(d) and 7(2) of the Treaty,” i.e., content restrictions without reasonable justification, authority to cancel accreditation of journalists, criminal penalties for defamation, publication of false news seditious statements, and vesting of the Minister with absolute power to censor publications or sanction media content.).

v. Human Rights Does the EACJ have the authority to hear human rights cases?

In principle, the answer is no until such time when Article 27(2) of the Treaty will be operationalized to include human rights in the jurisdiction of the Court. The Court’s authority derives from the EAC Treaty. The role of the Court is “to ensure adherence to law in the interpretation and application of and compliance with this Treaty” [Article 23(1)]. Accordingly, the Court would have no direct jurisdiction over human rights disputes. To that end, Article 27(1) states that “[t]he Court shall initially have jurisdiction over the interpretation and application of this Treaty.”

Nonetheless, the Treaty does contain certain other provisions whose nature and, therefore, interpretation and application, fall within the realm of democracy, good governance, accountability, social justice, rule of law, economic and civic rights, and even human rights – see, in particular Articles 6(d), and 7(2) of the Treaty; plus those of the common market protocol – which provide for a series of “freedoms” of the movement of goods, services, capital, persons, information and technology across the common market’s borders; as well as the “rights” of establishment and residence within those borders.

The Court has jurisdiction to “interpret,” “apply” and assure “compliance with” (i.e. non infringement of) all these provisions of the Treaty, and those of its protocols – notably those of the common market protocol.

Article 27(2) of the Treaty provides that the jurisdiction of the Court may be extended to human rights at a future date. Article 27(2) of the Treaty (“The Court shall have such other original, appellate, human rights and other jurisdiction as will be determined by the Council at a suitable subsequent date. To this end, the Partner States shall conclude a protocol to operationalise the extended jurisdiction.”). To date, the EAC Council of Ministers has not extended the EACJ’s jurisdiction to human rights.

“While the Court will not assume jurisdiction to adjudicate on human rights disputes, it will not abdicate from exercising its jurisdiction of interpretation under Article 27 (1) merely because the reference includes allegation of human rights violation.” James Katabazi & 21 Others v. Sec’y Gen. of EAC & Other, Ref. No. 1 of 2007, at 16 (Nov. 1, 2007). See also Patrick Ntege Walusumbi & 2 Others v. Att’y Gen. of Uganda & 5 Others, Ref. No. 8 of 2013, at 16 (Feb. 27, 2015); Prof. Nyamoya Francois v. Att’y Gen. of Burundi & Other, Ref. No. 8 of 2011, at 17-18 (Feb. 28, 2014); Samuel Mukira Mohochi v. Att’y Gen. of Uganda, Ref. No. 5 of 2011, at 12, 15, (May 17, 2013); Emmanuel Mwakisha Mjawasi & 748 Others v. Att’y Gen. of Kenya, Ref. No. 2 of 2010, at 5–6 (Sept. 29, 2011); Indep. Med. Unit v. Att’y Gen. of Kenya & 4 Others, Ref. No. 3 of 2010, at 6 (June 29, 2011).

In James Katabazi & 21 Others v. Sec’y Gen. of EAC & Other, Ref. No. 1 of 2007, at 15-16 (Nov. 1, 2007), the Court held that although it “may not adjudicate on disputes concerning violation of human rights per se[,]” it will not decline jurisdiction on matters that include human rights given the following articles of the Treaty in combination:

  • Article 5(1) of the Treaty: Stating that one of the Community objectives is to encourage cooperation in “legal and judicial affairs.”
  • Article 6(d) of the Treaty: Describing the fundamental principles of the Community to include “rule of law and the promotion and protection of human and peoples rights [sic] in accordance with the provisions of the African Charter on Human and Peoples’ Rights.”
  • Article 7(2) of the Treaty: Stating that Partner States will adhere to the “maintenance of universally accepted standards of human rights.”
  • Article 8(1)(c) of the Treaty: Obligating Partner States to refrain from taking measures that will “jeopardise the achievement” of the Treaty’s objectives.

This holding has been affirmed in several subsequent cases. See Att’y Gen. of Rwanda v. Plaxeda Rugumba, Appeal No. 1 of 2012, at 10 (June 21, 2012); Mbugua Mureithi Wa Nyambura v. Att’y Gen. of Uganda & Other, Ref. No. 11 of 2011, at 14-15 (Feb. 24, 2014); Plaxeda Rugumba v. Att’y Gen. of EAC & Other, Ref. No. 8 of 2010, at 14-18 (Dec. 1, 2011); see also The Democratic Party v. Sec’y Gen. of EAC & 4 Others, Appeal No. 1 of 2014, at 23 (July 28, 2015) (“In as far as . . . Article 6(d) recognize[s] the Charter’s relevance in promotion and protection of human and peoples’ rights, then compliance with those provisions of the Charter become, ipso jure, an obligation imposed upon the Partner States under the Treaty.”).

vi. Environmental Issues

Similarly, despite the lack of a Protocol concerning the environment or management of natural resources pursuant to Article 151 of the Treaty, the Court retains capacity to consider environmental issues under “existing provisions of the Treaty” due to their inclusion under Chapter 19. See Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2014, at 8-9 (July 29, 2014) (noting that “Articles 5(3)(c) through 114(1), are ‘live and vibrant’ provisions of the Treaty, capable of being interpreted and applied by the Court.”); see also Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2014, at 2, 28 (July 29, 2014) (“. . . pitting the aspirations of the State for accelerated socio-economic development of the Country, against the concerns of the Civil Society for the conservation, preservation and protection of the Natural Environment . . . it is quite evident that were the authorities of the Government of the United Republic of Tanzania to take any measures to activate their “initial plan” to construct the Super Highway through the Serengeti, as originally conceived, they would have, without a doubt, fallen foul of Tanzania’s above-mentioned undertakings of Articles 6(d), 7(2) and 8 (1) (c) of the Treaty, read together with other provisions of the same Treaty (in particular, Articles 111-114)”); Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2011, at 13-14 (Mar. 15, 2012) (noting that although no provision of the Treaty reserves environmental jurisdiction to Partner States, the Court still retains jurisdiction under Articles 5(2), 5(3), 8(1)(c), 111(1)(d), 111(2), 112(1), and 114(1)(a) and (b) of the Treaty).

vii. EAC Protocols

Under Article 151 of the Treaty, the Protocols form part of the Treaty, and, therefore, the EACJ has jurisdiction over their interpretation. see E. Afr. Law Soc’y v. Sec’y Gen. of EAC, Ref. No. 1 of 2011, at 29 (Feb. 14, 2013) (rejecting challenge to dispute settlement mechanisms of the Protocol Establishing the East African Community Customs Union and the Protocol for the Establishment of the East Africa Community Common Market for purportedly ousting the EACJ of its jurisdiction to adjudicate disputes arising under these Protocols); see also E. Afr. Ctr. for Trade Policy & Law v. Sec’y Gen. of EAC, Ref. No. 9 of 2012, at 34–35 (May 9, 2013); see generally Grands Lacs Supplier S.A.R.L. & Others v. Att’y Gen. of Burundi, Ref. No. 6 of 2016 (June 19, 2018); British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Ref. No. 7 of 2017 (Mar. 26, 2019) (ruling on the issue of free cross border movement of goods under Article 1(1) of the Customs Union and various articles of of the Common Market Protocol); However, a Protocol does not extend the EACJ’s jurisdiction unless it was concluded “for the specific purpose of extending the Court’s jurisdiction.” Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Appeal No. 3 of 2013, at 18 (July 27, 2015) (affirming that the Common Market Protocol does not extend the Court’s jurisdiction ratione personae to legal and natural persons within the Partner States). In turn, in matters concerning the extended jurisdiction of the EACJ, the Court is unwilling to expand “jurisdiction under Article 27 (2) of the Treaty in the absence of a protocol to operationalise the Court’s extended jurisdiction.” Modern Holdings (EA) Ltd. v. Kenya Ports Auth., Ref. No. 1 of 2008, at 9 (Feb. 12, 2009); see also Mbugua Mureithi Wa Nyambura v. Att’y Gen. of Uganda & Other, Ref. No. 11 of 2011, at 14 (Feb. 24, 2014); Att’y Gen. of Rwanda v. Plaxeda Rugumba, Appeal No. 1 of 2012, at 8 (June 21, 2012); Plaxeda Rugumba v. Att’y Gen. of EAC & Other, Ref. No. 8 of 2010, at 14 (Dec. 1, 2011); Hon. Sitenda Sebalu v. Sec’y Gen. of EAC & 2 Others, Ref. No. 1 of 2010, at 29 (June 30, 2011) (delay by the Attorney General of Uganda “to submit written comments on the draft protocol to operationalise extended jurisdiction of the EACJ constitutes measures likely to jeopardise the achievement of the objectives of the Community stipulated in Article 5 or the implementation of the Treaty within the meaning of Article 8(1)(c) . . . constitutes an infringement of the Treaty.”); James Katabazi & 21 Others v. Sec’y Gen. of EAC & Other, Ref. No. 1 of 2007, at 15 (Nov. 1, 2007).

viii. Political Affairs (Article 123)

Paragraphs 2, 3 and 4 of Article 123 of the Treaty (Political Affairs) are inoperative and notjusticiable “before this Court or before the national courts or tribunals.” Ref. for a Preliminary Ruling under Article 34 of the Treaty Made By the High Court of Uganda in the Proceedings between the Att’y Gen. of Uganda & Tom Kyahurwenda, Case Stated No. 1 of 2014, at 28 (July 31, 2015). Paragraph 5 of Article 123 of the Treaty provides that “the Council shall determine when the provisions of paragraphs 2, 3 and 4 of this Article shall become operative and shall prescribe in detail how the provisions of this Article shall be implemented.” Such a determination has not yet been made. Ref. for a Preliminary Ruling under Article 34 of the Treaty Made By the High Court of Uganda in the Proceedings between the Att’y Gen. of Uganda & Tom Kyahurwenda, Case Stated No. 1 of 2014, at 28 (July 31, 2015).

4. Live Dispute Requirement For a cause of action to be justiciable, there must be a “live dispute” for the EACJ to adjudicate. See Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Ref. No. 6 of 2010, at 17 (Sept. 2, 2013) (finding that there was no live dispute where local proceedings set aside validity of bank guarantee while EACJ case proceeded).

The raison d’être of Courts of Justice is to give binding decisions on live disputes submitted to them by the parties or, render advisory opinions in limited cases where their Constitutive Constitutions, Statutes or Treaties so provide. If there is no live dispute for resolution (and there can be none in the absence of contending parties) or the Court is not exercising any advisory opinion jurisdiction it may have, a Court of Justice would be wasting the public resources of money and time by engaging in a futile and vain exposition of the law.

Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Appeal No. 3 of 2013, at 26 (July 27, 2015) (the court will not adjudicate issues that are “wholly academic.”). Accordingly, justiciability requires “pre-existing facts arising from a real live situation that gives rise to, for instance, a breach of contract, a tortuous wrong, or other such grievance on the part of one party against another.” Human Rights Awareness & Promotion Forum (HRAPF) v. Att’y Gen. of Uganda, Ref. No. 6 of 2014, at 19 (Sept. 27, 2016) (citing Legal Brains Tr. (LBT) Ltd. v. Att’y Gen. of Uganda, Appeal No. 4 of 2012, at 11–12 (May 19, 2012)) (requiring “the existence of a live controversy that affects the rights of parties . . . to avoid the hollow and futile scenario of a court engaging its efforts in applying a specific law to a set of mere speculative facts.”); Human Rights Awareness & Promotion Forum (HRAPF) v. Att’y Gen. of Uganda, Ref. No. 6 of 2014, at 19-20 (Sept. 27, 2016) (“[I]n the absence of such a live dispute, a court decision would have no practical effect on the purported rights of any party and would, accordingly, be hypothetical and academic.”).

i. Ripeness

The determination of whether a Reference constitutes a “live dispute” is case-specific, but as a general rule, the challenged “action” must be“ripe,” meaning it must be “an accomplished, full-fledged ‘action’ . . . beyond a mere intention, inception, or conception to do or to abstain from doing something” and “more than a mere abstract idea, hypothetical plan, or academic postulate, or a dreamer’s wish on the part of the potential actor.” Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2014, at 29 (July 29, 2014) (finding no decision or action capable of being challenged where there only existed a “mere proposal” by the Government of Tanzania to construct a road through the Serengeti Park someday); Legal Brains Tr. (LBT) Ltd. v. Att’y Gen. of Uganda, Appeal No. 4 of 2012, at 16 (May 19, 2012) (declining to decide a reference regarding the Attorney General of Uganda’s interpretation of the Treaty’s term-limits provision when there was no election at issue and specifically no candidates whose ability to stand for election turned on the interpretation of the provision); Human Rights Awareness & Promotion Forum (HRAPF) v. Att’y Gen. of Uganda, Ref. No. 6 of 2014, at 26–27 (Sept. 27, 2016) (finding no live dispute following the nullification of the impugned Act by the Republic of Uganda). For such hypothetical questions, it is “crystal clear” that the “proper approach” is for a Partner State to request an advisory opinion. Legal Brains Tr. (LBT) Ltd. v. Att’y Gen. of Uganda, Appeal No. 4 of 2012, at 11 (May 19, 2012).

ii. Mootness

An issue that has been resolved by the Court in the oral hearing should not be raised suo motu by the Trial Court at the stage of composing its judgment because it is no longer a live issue. Alice Nijimbere v. Sec’y Gen. of EAC, Appeal No. 1 of 2016, at 11 (Dec. 2, 2016) (finding an issue was improperly raised by the Trial Court as the Trial Court had previously allowed the Pleadings to be amended to include the correct party at the oral hearing).

iii. Omissions

For an “omission” or “inaction” to form the basis for a live dispute, the Court must look to each case with “its own particular and unique exigencies.” The Court has ruled that the following alleged omissions could create a live dispute:

  • Failure to arrest the perpetrators of a rebellious massacre of 3000 citizens in the Mt. Elgon area of Kenya;
  • Failure to investigate their cases;
  • Failure to charge the suspects; prosecute them in the courts of law; and
  • Failure generally to ensure that justice is done; etc, etc.

Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2014, at 30-31 (July 29, 2014) (referencing the facts of Att’y Gen. of Kenya v. Indep. Med. Legal Unit, Appeal No. 1 of 2011, at 17–18 (Mar. 15, 2012)).

iv. Matters in the Public Interest

The Court has discretion to deviate from the live dispute requirement on a case-by-case basis to address a matter which is in the interest of the public, in the following scenarios:

a) If a court’s decision will have some practical effect on the rights of the parties, notwithstanding that it will not have the effect of determining the controversy which gave rise to the action.

b) In order to ensure that an important recurring question which might independently evade judicial review is heard by the court.

c) Matters that raise an issue of public importance, the resolution of which would be in the public interest.

Human Rights Awareness & Promotion Forum (HRAPF) v. Att’y Gen. of Uganda, Ref. No. 6 of 2014, at 23 (Sept. 27, 2016) (quoting Joseph Borowski vs. Attorney General of Canada (1989) 1 SCR 342).

Regarding the third category, a matter is only of “general public importance” where “it is important to a sufficiently large section of the public.” Human Rights Awareness & Promotion Forum (HRAPF) v. Att’y Gen. of Uganda, Ref. No. 6 of 2014, at 23-24 (Sept. 27, 2016) (quoting R (on the application of Corner House Research) vs. Secretarv of State for Trade and Industry (2005) 4 All ER 1 at 36). “Even where such matter is adjudged to be of general public importance that would not necessarily enjoin courts to resolve it ‘in the public interest.’” Human Rights Awareness & Promotion Forum (HRAPF) v. Att’y Gen. of Uganda, Ref. No. 6 of 2014, at 24 (Sept. 27, 2016).

The Court has also noted that “due cognizance should be made of matters of public interest in Nation States that derive from their socio-cultural diversities” such that “the normative values intrinsic to different practices and ‘rights’ cannot be said to be identical in different global communities.” Human Rights Awareness & Promotion Forum (HRAPF) v. Att’y Gen. of Uganda, Ref. No. 6 of 2014, at 25 (Sept. 27, 2016).

5. Limitations i. Time Limitations (Article 30(2))

Jurisdiction ratione temporis “focuses on the temporal parametres [sic] of the dispute before the Court, such as time bar or limitation.” Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Appeal No. 3 of 2013, at 15 (July 27, 2015).

a. Statute of Limitations

Under Article 30(2) of the Treaty, the Court is limited to hearing References “filed within two months from the date of action or decision complained of, or the date the Claimant became aware of it.” Att’y Gen. of Kenya v. Indep. Med. Legal Unit, Appeal No. 1 of 2011, at 16-17 (Mar. 15, 2012); Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Appeal No. 3 of 2013, at 23 (July 27, 2015) (“[A] reference should be filed within two months of the crystallization of the cause of action or knowledge of its existence by the complainant.”); Baranzira Raphael & Other v. Att’y Gen. of Burundi, Ref. No. 15 of 2014, at 8 (Mar. 22, 2016) (finding one of the claims time barred where the law in question was enacted years before the claim was brought, the applicant did not address the potential time bar related to that law in the applicant’s pleadings); Malcolm Lukwiya v. Att’y Gen. of Uganda, Ref. No. 6 of 2015, at 21-23 (Nov. 27, 2018) (finding the claim time barred where the case was filed 23 days after the expiration of the two-month statute of limitations).

This time limitation “is critical . . . to ensure legal certainty among the diverse membership of then Community.” Att’y Gen. of Kenya v. Indep. Med. Legal Unit, Appeal No. 1 of 2011, at 17 (Mar. 15, 2012) (referencing Case 209/83 Ferriera Valsabbia Spa v EC Commission OJ C2009, 9.8.84 p.6, para 14, ECJ quoted in Halsbury’s Laws of England, 4th Edn., Volume 51, Para 2.43); see also Att’y Gen. of Uganda & Other v. Omar Awadh & 6 Others, Appeal No. 2 of 2012, at 15 (Apr. 15, 2013). Accordingly, “strict application” is required. Prof. Nyamoya Francois v. Att’y Gen. of Burundi & Other, Ref. No. 8 of 2011, at 24 (Feb. 28, 2014); Att’y Gen. of Kenya v. Indep. Med. Legal Unit, Appeal No. 1 of 2011, at 17 (Mar. 15, 2012) (the Court lacks “power to extend that time limit” (referencing Case 24/69 Nebec v EC Commission [1975] ECR 145 at 151, ECJ)).

In Steven Deniss v. Att’y Gen. of Burundi & 5 Others, Reference No. 3 of 2015 (March 31, 2017) (referencing Att’y Gen. of Uganda & Other v. Omar Awadh & 6 Others, Appeal No. 2 of 2012 (Apr. 15, 2013)), the Court considered the legality of the time limitation and, in particular, whether it denies access to justice against individuals in favour of the Partner States. Steven Deniss v. Att’y Gen. of Burundi & 5 Others, Reference No. 3 of 2015 (March 31, 2017), at 21-22. The Court upheld the legality of the time limitation, finding that it was neither arbitrary nor capricious nor unreasonable, and “is intended to facilitate the expeditious realization of the Community’s objectives as detailed in Article 5(2) of the Treaty by forestalling open-ended avenues for litigation that could derail the integration process.” Steven Deniss v. Att’y Gen. of Burundi & 5 Others, Reference No. 3 of 2015 (March 31, 2017), at 25, 30. In addition, the Court held that Article 30(2)’s time limitation is not in conflict with Articles 6(d) and 7(2) of the Treaty because the latter “prescribe the fundamental principles that should be adhered to in the realization of the treaty’s objectives, a case that is premised on the principles enshrined therein should be promptly instituted within the time period prescribed in Article 30(2) of the Treaty.” Steven Deniss v. Att’y Gen. of Burundi & 5 Others, Reference No. 3 of 2015 (March 31, 2017), at 25. In so holding, the Court looked to similar time limitations under other international treaties, including the Treaty Establishing the European Community and the European Convention on Human Rights. Steven Deniss v. Att’y Gen. of Burundi & 5 Others, Reference No. 3 of 2015 (March 31, 2017), at 26.

Generally, “the starting date” of the two-month period “is not the day the act [complained of] ends, but the day it is first effected.” Att’y Gen. of Uganda & Other v. Omar Awadh & 6 Others, Appeal No. 2 of 2012, at 21 (Apr. 15, 2013); Media Council of Tanz. & 2 Others v. Att’y Gen. of Tanz., Ref. No. 2 of 2017, at 24 (Mar. 28, 2019) (finding that the limitations period did not start to run for claim in connection with the enactment of a law until Tanzania’s President assented to the law rather than when Tanzania’s Parliament passed the law).

The two-month period can begin to run on the date the claimant became aware of the action or decision complained of, rather than the date the action or decision occurred. See Manariyo Desire v. Att’y Gen. of Burundi, Ref. No. 8 of 2015, at 6-7 (Dec. 2, 2016) (allowing applicant to file a reference challenging a decision of the Supreme Court of Burundi within two months of the receipt of notification of judgment, rather than the date the judgment itself was handed down); see also Att’y Gen. of Uganda & Other v. Omar Awadh & 6 Others, Appeal No. 2 of 2012, at 10 (Apr. 15, 2013) (finding that this “second limb would then apply where the claimant does not know the exact date of the action complained of” and in this regard “the Court must determine the specific actions complained of”). However, it is not necessary to wait until the day on which the claimant had full information. Grands Lacs Supplier S.A.R.L. & Others v. Att’y Gen. of Burundi, Ref. No. 6 of 2016, at 14-15 (June 19, 2018) (claim in connection with seizure of goods by Burundian officials not time-barred even though seizure occurred more than two months prior because the evidence was clear that the applicant “had no indication of the seizure of their goods” until a date within the two-month limitations period); Mbugua Mureithi Wa Nyambura v. Att’y Gen. of Uganda & Other, Ref. No. 11 of 2011, at 18-21 (Feb. 24, 2014) (rejecting applicant’s argument that the limitations period did not begin to run during his detention by the Ugandan authorities and subsequent deportation to Kenya because he lacked full information related to the violations he complained of, i.e., the rationale for his deportation).

Rule 3(1)(d) of the 2019 Rules applies to computation of the two-year limitations period, i.e., if the period would otherwise end on a Saturday, Sunday, or an official holiday, it shall be extended until the end of the first following working day. Baranzira Raphael & Other v. Att’y Gen. of Burundi, Ref. No. 15 of 2014, at 13-14 (Mar. 22, 2016) (citing Rule 3(1)(d) of the 2013 Rules (Rule 3(1)(d) of the 2019 Rules)).

Where multiple actions are challenged in the same case, the Court may find claims in connection with some to be time-barred and others not to be time-barred. Bonaventure Gasutwa & 2 Others v. Att’y Gen. of Burundi, Ref. No. 13 of 2014, at 18 (Nov. 26, 2015) (finding a claim in connection with election of political party president time-barred where election took place more than two months prior, but case could proceed because it “stands on another leg” of the respondent’s subsequent actions that took place within the two-month period).

A claimant cannot avoid the time limitation by alleging a continuing breach or violation of the Treaty. Att’y Gen. of Kenya v. Indep. Med. Legal Unit, Appeal No. 1 of 2011, at 17–19 (Mar. 15, 2012) (following Case 24/69 Nebec v EC Commission [1975] ECR 145 at 151, ECJ) (overturning the First Instance Division and rejecting argument that claim was timely because of continuous violation of the Treaty by the Kenyan Government in refusing to investigate alleged atrocities); Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Appeal No. 3 of 2013, at 24–25 (July 27, 2015) (finding an action time-barred and rejecting alleged continuing failure by a respondent to honour a guarantee); see Prof. Nyamoya Francois v. Att’y Gen. of Burundi & Other, Ref. No. 8 of 2011, at 23–24 (Feb. 28, 2014) (finding that the “starting date” of the detention was controlling in a case where the applicant argued that his case turned on the ongoing “process” that led to his alleged unlawful detention and not the detention itself); Att’y Gen. of Uganda & Other v. Omar Awadh & 6 Others, Appeal No. 2 of 2012, at 15 (Apr. 15, 2013) (rejecting unlawful arrest and rendition as a continuous violation based on test created by the U.S. Supreme Court in Toussie v United States 397 US 112 (1970), which considers “(a) if the explicit language of the statute compels such a conclusion; and (b) if the nature of the crime is such that Congress must assuredly have intended that it be treated as a continuing one.”).

Article 30(2)’s two-month time limitation applies only to proceedings brought by way of a “Reference,” i.e. “matters in Article 30 as read with Article 27.” Sec’y Gen. of EAC v. Angella Amudo, Appl. No. 15 of 2012, at 9 (May 2, 2013) (noting that the time limitation “cannot be applied to every instance in the Treaty.”). It does not apply to proceedings under Article 31 of the Treaty concerning disputes and labour relations between the East African Community and its employees, under Article 32 of the Treaty concerning arbitration proceeding, or “any other proceedings other than one under Article 30 as read with Article 27.” Sec’y Gen. of EAC v. Angella Amudo, Appl. No. 15 of 2012, at 12 (May 2, 2013).

b. Retroactivity

Complaints concerning events occurring before the Treaty’s entry into force will be struck-out, because the Treaty does not expressly provide for retroactive application, and no contrary reading can be inferred from the Framers’ intentions. Emmanuel Mwakisha Mjawasi & 748 Others v. Att’y Gen. of Kenya, Appeal No. 4 of 2011, at 10-12 (Apr. 27, 2012) (“Retroactivity of a treaty may derive either explicitly from the provisions of the treaty itself, or it may implicitly be deduced from its interpretation.”); Emmanuel Mwakisha Mjawasi & 748 Others v. Att’y Gen. of Kenya, Ref. No. 2 of 2010, at 9 (Sept. 29, 2011) (citing Vienna Convention Art. 28, which provides, “[u]nless a different intention appears from the Treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry in force of the treaty with respect to that party”); cf. James Alfred Koroso v. Att’y Gen. of Kenya & Other, Ref. No. 12 of 2014, at 13–14 (Mar. 24, 2016) (finding that although the alleged violations took place before the Treaty was enacted, there is no retroactivity barrier where the case is based on the respondent’s alleged non-compliance with a National Court’s judgment, which occurred after the Treaty had been brought into force); Rashid Salum Adiy & 39,999 Others v. Att’y Gen. of the Revolutionary Gov’t of Zanzibar & 2 Others, Ref. No. 9 of 2016 (Sept. 29, 2020), at 13 (“[U]nless the principle on non-retrospective application of the Treaty is rebutted by demonstrating a contrary intention; as a matter of law, the Court would lack the juridical basis to determine a dispute in respect of events that took place before the coming into force of the Treaty.”).

There is also no basis for the Common Market Protocol to apply retroactively given its lack of specific statement to that effect. Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Appeal No. 3 of 2013, at 24 (July 27, 2015); Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Ref. No. 6 of 2010, at 23, 25 (Sept. 2, 2013) (citing Vienna Convention).

Because issues of non-retroactivity can “dispose[] of the case there and then,” Emmanuel Mwakisha Mjawasi & 748 Others v. Att’y Gen. of Kenya, Appeal No. 4 of 2011, at 18 (Apr. 27, 2012), the “Court must consider the question even where the Parties themselves fail to raise it.” Emmanuel Mwakisha Mjawasi & 748 Others v. Att’y Gen. of Kenya, Appeal No. 4 of 2011, at 15 (Apr. 27, 2012).

ii. Jurisdiction Reserved to Partner States (Article 30(3))

Pursuant to Article 30(3) of the Treaty, the EACJ has no jurisdiction “where an Act, regulation, directive, decision or action has been reserved under this Treaty to an institution of a Partner State.” The EACJ has held that this provision is “clear” and will be read “strictly.” Afr. Network for Animal Welfare (ANAW) v. Att’y Gen. of Tanz., Ref. No. 9 of 2010, at 6 (Aug. 29, 2011); see also Venant Masenge v. Att’y Gen. of Burundi, Ref. No. 9 of 2012, at 20-21 (June 18, 2014) (EACJ had jurisdiction to declare the occupation and exploitation of the applicant’s property unlawful in violation of Article 6(d) of the Treaty, but was “not clothed with the jurisdiction” to (1) declare applicant’s rightful ownership of the parcel of land as claimed by his Registration certificate, and order all illegal constructions be immediately demolished; (2) order respondent to restitute full property of land to applicant; and (3) declare applicant’s full right to enjoy his property right according to his Registration title); Christopher Mtikila v. the Att’y Gen. of Tanz. & Others, Ref. No. 2 of 2007, at 11-13 (Apr. 25, 2007) (EACJ declining to exercise jurisdiction over challenge to elections for the EALA held by the National Assembly of Tanzania because Article 52(1) of the Treaty reserves jurisdiction to Partner States over questions relating to EALA election results).

Certain reservations to the Court’s jurisdiction have been expressly described through the creation of parallel mechanisms for dispute resolution which exclude the Court’s jurisdiction, namely: Articles 24(1), 41(2) and Annex IX of the EAC Customs Union Protocol (creating an EAC Committee on Trade Remedies to handle trade disputes and requiring Partner States to adhere to the dispute settlement procedures and implement those decisions in good faith), as well as in Article 50 (2) of the EA Common Market Protocol (empowering the Council to monitor and evaluate the implementation of the Protocol). Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2011, at 13-14 (Mar. 15, 2012) (noting that no provision of the Treaty reserves environmental jurisdiction to Partner States).

Relatedly, the Court does not have jurisdiction to enforce decisions of National Courts, Prof. Nyamoya Francois v. Att’y Gen. of Burundi & Other Ref. No. 8 of 2011, at 17-18 (Feb. 28, 2014) (no jurisdiction to declare that an applicant has the full right to enjoy his freedom in accordance with a judgment from a national court, or to order the release of a prisoner). In turn, “it is incumbent upon [Partner State] national courts to apply and enforce domestic laws in such a manner as would ensure compliance by the State with its international obligations.” Manariyo Desire v. Att’y Gen. of Burundi, Ref. No. 8 of 2015, at 18 (Dec. 2, 2016). If a Partner State accepts the bounds of the Treaty with no reservations, it can “no longer apply domestic legislation in ways that make its effects prevail over those of Community Law.” British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Ref. No. 7 of 2017, at 58, 60 (Mar. 26, 2019) (“[U]nder the Vienna Convention the Partner States’ domestic laws cannot be invoked as justification for failure to perform a treaty obligation.”) (citing Samuel Mukira Mohochi v. Att’y Gen. of Uganda, Ref. No. 5 of 2011, at 29 (May 17, 2013)). That is because the law in every Partner State “includes the Treaty and the Protocol which, also in the exercise of her sovereign power, the [Partner State] . . . accepted not only to be bound by, as Community law, but equally as national law.” Samuel Mukira Mohochi v. Att’y Gen. of Uganda, Ref. No. 5 of 2011, at 27 (May 17, 2013). Indeed, it is a “basic principle [of] international law [that] . . . [i]t cannot be lawful for a state that with others voluntarily enters into a treaty by which rights and obligations are vested, not only on the state parties but also on their people, to plead that it is unable to perform its obligation because its laws do not permit it to do so.” Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 14 Others, Ref. No. 1 of 2006, at 41 (Mar. 30, 2007); Baranzira Raphael & Other v. Att’y Gen. of Burundi, Ref. No. 15 of 2014, at 11 (Mar. 22, 2016) (citing Vienna Convention on the Law of Treaties at art. 27 (1969)) (“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.”).

6. Response to a Reference

“[A] Reference requires the Respondent to make a reasoned Response in defence.” Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2011, at 19 (Mar. 15, 2012). Pursuant to the doctrine of natural justice, “no man is to be condemned unheard (audi alteram partem).” Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Ref. No. 17 of 2014, at 48–49 (Feb. 3, 2017). “The principles of fairness and natural justice abhor finding against a party which has not been given an opportunity to present its case,” providing for “[t]he right to be informed of charges; the right to a fair hearing; and [t]he right to be given an opportunity to defend his/her case personally or to be represented.” Godfrey Magezi v. Att’y Gen. of Uganda, Ref. No. 5 of 2013, at 17-18 (May 14, 2015) (refusing to find against the respondent without hearing as it would be a violation of the principle of natural justice).

A respondent pleading a point that was not brought before the Court by the applicant is “more in the nature of ‘a cross-reference’, which is not provided for or envisaged under Article 30.” E. Afr. Law Soc’y & 4 Others v. Att’y Gen. of Kenya & 3 Others, Ref. No. 3 of 2007, at 35 (Aug. 31, 2008) (finding however, that despite the improper cross-reference, the Court had allowed the issue to be framed and heard full arguments on it, therefore, the Court considered it “prudent to make [its] views on it known”); see also Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Appeal No. 2 of 2017, at 30 (May 25, 2018) (“[T]he Rules do not contemplate any counterclaim in a Reference.”).

I. STATEMENTS OF CLAIM (ARTICLE 31) How is a claim initiated and what are the contents of a claim presented before the EACJ?

A dispute between the Community and its employees under Article 31 of the Treaty is instituted by presenting to the Court a statement of claim. The statement must contain:

  • The name, designation, address and where applicable residence of both the claimant and the respondent(s);
  • A concise statement of facts on which the claim is based and of the applicable law;
  • The order (i.e. relief or remedy) sought [Rule 26].

An employee’s claim against the EAC should be filed under Article 31 of the Treaty and not under Article 30. Sec’y Gen. of EAC v. Angella Amudo, Appl. No. 15 of 2012, at 7, 11 (May 2, 2013). ARTICLE 31 - Disputes between the Community and its Employees

The Court shall have jurisdiction to hear and determine disputes between the Community and its employees that arise out of the terms and conditions of employment of the employees of the Community or the application and interpretation of the staff rules and regulations and terms and conditions of service of the Community.

Current EAC employees have standing to bring such claims but “prospective employees” and former employees do not. Alice Nijimbere v. EAC Secretariat, Appl. No. 11 of 2015, at 8 (Nov. 24, 2015); Angella Amudo v. Sec’y Gen. of EAC, Appeal No. 4 of 2014, at 19-20 (July 30, 2015). “[T]he remedy under Article 31 is only available to employees of the Community” while in their capacity as employees. Angella Amudo v. Sec’y Gen. of EAC, Appeal No. 4 of 2014, at 17 (July 30, 2015). Article 31 of the Treaty does not impose a two-month statute of limitations as Article 30 does. Angella Amudo v. Sec’y Gen. of EAC, Appeal No. 4 of 2014, at 17 (July 30, 2015) (rejecting respondent’s argument that the Article 31 claim was time-barred under Article 30(2)’s two-month limit).

RULE 26 - Disputes between the Community and its employees

(1) A claim for determination of a dispute between the Community and its employees under Article 31 of the Treaty shall be instituted by presenting to the Court a statement of claim.

(2) A statement of claim shall state –

(a) the name, designation, address and where applicable the residence of the claimant;

(b) the designation, name, address and where applicable the residence of the respondent;

(c) a concise statement of facts on which the claim is based and of the law applicable; and

(d) the orders sought.

A claimant may request special damages in their statement of claim if there is a measurable amount of actual loss. Angella Amudo v. Sec’y Gen. of EAC, Claim No. 1 of 2012, at 28 (Sept. 26, 2014) (awarding special damages to the claimant for actual loss suffered during the remaining 18 months of her five-year contract and refusing to award damages for the loss for the expected renewal of her contract because they would be purely speculative,as well as refusing to award general or aggravated damages).

II. AMENDMENT OF PLEADINGS

“The amendment of pleadings before this court is governed by Rules 48, 49 and 50.” Att’y Gen. of Uganda v. Johnson Akol Omunyokol, Appl. No. 10 of 2015, at 4 (June 29, 2016) (citing Rules 48, 49 and 50 of the 2013 Rules (Rules 48, 50 and 51 of the 2019 Rules)).

RULE 48 - General power to amend

For the purpose of determining the real question in controversy between the parties, or of correcting any defect or error in any pleading, a party may amend its pleading:

(a) without leave of the Court, before the close of pleadings;

(b) with the consent of all parties, and where a person is to be added or substituted as a party, that person’s consent; or

(c) with leave of the Court.

RULE 50 - Amendment without leave

(1) A party that amends its pleading under paragraph (a) or (b) of Rule 48, shall lodge the original of the amended version of the pleading in the registry, and shall forthwith serve a copy thereof on every other party.

(2) Where a party is served with an amended pleading, after it has filed its answer it may, without leave of the Court, amend its own answer to the pleading which is being amended, and shall lodge it in the registry within fourteen (14) days after being so served.

RULE 51 – Amendment with leave

(1) The Court may, at any stage of the proceedings, allow any party to amend its pleadings in such manner as it may direct and on such terms as to costs or otherwise as may be just.

(2) The Court may, in the following circumstances, grant such leave to amend notwithstanding that any relevant period of limitation current at the date of instituting the case has expired, if it thinks it is just so to do: —

(a) where the amendment is to correct the name of a party even if it has the effect of substituting a new party, if the Court is satisfied that the mistake sought to be corrected was a genuine mistake;

(b) where the amendment is to alter the capacity in which the party is or is made party to the proceedings, if the altered capacity is one which that party could have been or been made party at the institution of the proceedings; or

(c) where the amendment adds or substitutes a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed by the party seeking leave in the same case.

(3) Whenever a formal application is made to the Court for leave to amend any pleading, the amendment for which leave is sought shall be set out in writing, lodged with the Registrar and served on the opposite party before the hearing of the application.

(4) Where the Court grants leave for the amendment of any pleading, the amendment shall be made or be lodged within the time specified by the Court and if no time is so specified then within fourteen (14) days of the granting of leave.

(5) A party amending a pleading shall highlight any words or figures added to the original.

(6) Every pleading and other document amended under this Part shall be endorsed with the date of the amendment and either the date of the order allowing the amendment or, if made without leave, the number of the Rule in pursuance of which the amendment was made.

“Parties are at liberty to amend their pleadings without the leave of court ‘before the close of pleadings.’” See Att’y Gen. of Uganda v. Johnson Akol Omunyokol, Appl. No. 10 of 2015, at 4 (June 29, 2016) (citing Rule 48 of the 2013 Rules (Rule 48 of the 2019 Rules)). After the close of pleadings, a party may not amend their pleadings without the consent of all parties or with leave of the Court. Att’y Gen. of Uganda v. Johnson Akol Omunyokol, Appl. No. 10 of 2015, at 4-5 (June 29, 2016) (citing Rule 48 of the 2013 Rules (Rule 48 of the 2019 Rules)). See also Paul John Mhozya v. Att’y Gen. of Tanz., Appl. No. 13 of 2016, at 11 (July 7, 2017) (noting that under Rule 48(a) of the 2013 Rules (Rule 48(a) of the 2019 Rules), amendment of pleadings without leave must be made before the close of the pleadings, whereas amendment under Rule 48(c) of the 2019 Rules does not have such a time constraint).

The “Court has discretionary power to allow amendment of pleadings at any stage of the proceedings for purposes of determining the real question or issue in controversy between the parties. That discretionary power is exercised so as to do justice to the case and must be exercise judiciously with due consideration of all the facts and circumstances before the Court.” [sic] Johnson Akol Omunyokol v. Att’y Gen. of Uganda, Appl. No. 3 of 2016, at 5 (Dec. 1, 2016); Att’y Gen. of Rwanda v. Union Trade Ctr. Ltd. (UTC) & 19 Others, Appeal No. 2 of 2018, at 16 (May 29, 2019) (citing Rule 50(1) of the 2013 Rules (Rule 51(1) of the 2019 Rules)) (“[T]he Court may at any stage of the proceedings allow any party to amend its pleadings “in such manner and on such terms as it may direct.”); Paul John Mhozya v. Att’y Gen. of Tanz., Appl. No. 13 of 2016, at 12-13 (July 7, 2017) (Rules 50(1) and 48(c) of the 2013 Rules (Rules 51(1) and 48(c) of the 2019 Rules) are couched in “discretionary terms and the formality expected of both a party and the Court under Rule 50(3) [regarding formal applications for leave to amend] do not apply in [] informal or oral applications.”) (citing Johnson Akol Omunyokol v. Att’y Gen. of Uganda, Appl. No. 3 of 2016 (Dec. 1, 2016)). “[A]mendments to pleadings should be freely allowed if they can be made without injustice to the other side.” Johnson Akol Omunyokol v. Att’y Gen. of Uganda, Appl. No. 3 of 2016, at 5-6 (Dec. 1, 2016) (citing Eastern Bakery v. Castelino (1958) E.A. 461) (permitting pleading to be amended when amendments sought were “necessary to help the Court conclusively determine the issues before it,” and holding that “delay by a litigant in bringing a formal application to amend in itself was not ground for refusing the amendment, unless the Respondent could show prejudice” (citing Trans - Drakensberg bank Ltd v. Combined Engineering 1967 (3) SA (D))).

“The powers of amendment should . . . not be used to substitute one cause of action for another or change an action into another of a substantially different character.” Johnson Akol Omunyokol v. Att’y Gen. of Uganda, Appl. No. 3 of 2016, at 5 (Dec. 1, 2016); Att’y Gen. of Rwanda v. Union Trade Centre (UTC), Appl. No. 1 of 2018, at 11-12 (Mar. 29, 2018) (“[W]e consider most persuasive and quite instructive the established practice in the International Court of Justice (ICJ) whereby the court routinely allows substantial amendments to pleadings, provided that they do not substantially alter the nature of the case” (citing V. S. Mani (Ed.). ‘International Adjudication: Procedural Aspects,’ Developments in International Law (Vol.4). 1-980, Brill Archives, p. 138)); Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Ref. No. 17 of 2014, at 10-11 (Feb. 3, 2017) (ruling that “preliminary issues” should be raised in the pleadings or at the Scheduling Conference not “at the stage of submissions in the absence of any legal or procedural basis therefor” but considering the issues because “they have a bearing” on the issues before the Court); Human Rights Awareness & Promotion Forum (HRAPF) v. Att’y Gen. of Uganda, Ref. No. 6 of 2014, at 18 (Sept. 27, 2016) (“We are constrained to state from the onset that the attempt by the Applicant to introduce a cause of action . . . without having pleaded the same in the Reference is clearly misconceived.”); Baranzira Raphael & Other v. Att’y Gen. of Burundi, Ref. No. 15 of 2014, at 19 (Mar. 22, 2016) (holding that the introduction of additional aspects of the pleading at the stage of submissions that were not included in the Reference offends due process and the parties’ right to a fair hearing).

Leave to amend can be granted in an oral or otherwise informal hearing. See Paul John Mhozya v. Att’y Gen. of Tanz., Appl. No. 13 of 2016, at 12 (July 7, 2017). Additionally, a plaintiff can orally apply to have the pleadings amended to refer to the correct party. Alice Nijimbere v. Sec’y Gen. of EAC, Appeal No. 1 of 2016, at 10 (Dec. 2, 2016) (noting that the First Instance Division allowed applicant to orally apply to substitute the Secretary General as respondent rather than the EAC Secretariat).

An amended Reference that “indicates the amended portions of the original Reference . . . meets all the requirements of an amended pleading.” Prof. Nyamoya Francois v. Att’y Gen. of Burundi & Other, Ref. No. 8 of 2011, at 20 (Feb. 28, 2014). There is no express requirement “similar to that found for example in the Civil Procedure Rules of Kenya, Uganda and Tanzania that red, blue and green colours be used in showing the effected amendments against the original pleading.” Prof. Nyamoya Francois v. Att’y Gen. of Burundi & Other, Ref. No. 8 of 2011, at 20 (Feb. 28, 2014).

Occasionally an applicant may seek to join additional respondents. As with other amendments, under Rule 48(a) of the 2019 Rules, there is no need to request leave of the Court to introduce a second respondent to the pleadings if such introduction is carried about before the pleadings have closed. Prof. Nyamoya Francois v. Att’y Gen. of Burundi & Other, Ref. No. 8 of 2011, at 19 (Feb. 28, 2014). The jurisdictional limits as to who may be named a respondent continue to apply. Alice Nijimbere v. Sec’y Gen. of EAC, Ref. No. 7 of 2015, at 10 (Mar. 23, 2016) (denying joinder of Secretariat, which as an Organ of the EAC can only be sued through the Secretary General and not directly as a respondent); Indep. Med. Unit v. Att’y Gen. of Kenya & 4 Others, Ref. No. 3 of 2010, at 7-8 (June 29, 2011) (denying joinder of the Kenyan Minister for Internal Security, the Chief of General Staff, and Commissioner of Police to the case as respondents, since they were neither Partner States nor Institutions of the Community and thus did not satisfy the jurisdictional requirements).

III. STRIKING - OUT A PLEADING RULE 47(1)

The Court may, on application of any party, strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document:—

(a) may prejudice or delay the fair trial of the case; or

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the Court.

The Court has described in detail what constitutes a “pleading or other document” within the meaning of Rule 47(1):

Rule 47(1) applies to the striking out of pleadings and analogous documents but not evidence. Pleadings in Court by whatever name called are not evidence. They are averments of fact the proof of which is submitted to the trier of fact for investigation . . . Affidavits are evidence. Rule 47 is in Part IX of the Rules which deals with pleadings. The marginal note to Rule 47 speaks to “striking out pleadings”, not striking out evidence. The Rule is also clear that the documents to be struck out or expunged under the Rule are those which may be amended with or without leave. Affidavits are evidence and as such are not amenable to amendment . . . [T]he words ‘other document’ should be construed ejusdem generis to mean documents of the same nature but excluding evidence. In short, we find and hold as a matter of law that Rule 47 does not apply to the striking out or expunging of inadmissible evidence from the court record.

Att’y Gen. of Burundi v. Sec’y Gen. of the EAC, Appeal No. 2 of 2019, at 15 (June 4, 2020) (rejecting appellant’s argument that the First Instance Division committed a procedural error under Rule 47(1) by striking affidavits from the record because Rule 47(1) does not apply to the striking of affidavits).

Additionally, the Court has described the purpose of Rule 47(1) as follows:

The striking out or expurgation of irrelevant or inadmissible evidence is founded on the Court’s duty as the master of its own processes to ensure the ends of justice and prevent abuse . . . If irrelevant or inadmissible evidence were to be presented to the Court and allowed to remain on record, a grievous wrong would be committed in that evidence without probative value would but sodden with prejudice to the party adversely affected thereby, would be part of the Court’s record with the result that the stream of justice would be polluted. The Court prevents such a prospect by exercising an inherent power to reject, strike out, or expunge such evidence from its record either upon objection by a party, or proprio motu.

Att’y Gen. of Burundi v. Sec’y Gen. of the EAC, Appeal No. 2 of 2019, at 15 (June 4, 2020). “[T]he . . . power of the Court to strike out or to expunge the Parties’ pleadings under Rule 47, is extremely circumscribed: as to the process to be followed, and as to the grounds to be adduced for the exercise of that power. The process requires a special and specific application; and the grounds for it are limited only to those specifically enumerated in the Rule.” Att’y Gen. of Uganda v. E. Afr. Law Soc’y & Other, Appeal No. 5 of 2014, at 5 (Apr. 15, 2015) (citing Rule 47 of the 2013 Rules (Rule 47 of the 2019 Rules)).

A. Prejudice Or Delay

Currently, there is no EACJ jurisprudence interpreting when “[t]he Court may . . . strike out or expunge all or part of a pleading or other document . . . on the ground that the pleading or other document . . . may prejudice or delay the fair trial of the case” under Rule 47(1)(a) of the 2019 Rules.

B. Scandalous, Frivolous or Vexatious

Pleadings that are “obviously frivolous, vexatious, or in bad faith or scandalous can be struck out in entirety or in part.” Att’y Gen. of Rwanda v. Union Trade Ctr. Ltd. (UTC) & 19 Others, Appeal No. 2 of 2018, at 12 (May 29, 2019) (citing Att’y Gen. of Rwanda v. Union Trade Ctr. (UTC), Appl. No. 1 of 2018 (Mar. 29, 2018)). “A scandalous and/or frivolous pleading is ipso facto vexatious.” Att’y Gen. of Rwanda v. Union Trade Ctr. Ltd. (UTC) & 19 Others, Appeal No. 2 of 2018, at 12-13 (May 29, 2019) (quoting Mpaka Road Dev. Co. Ltd. v. Abdul Gafur Kana t/a April Kapuri Pan Coffee House, High Court of Kenya Commercial Courts Nairobi Civ. No. 318 (2000)).

A scandalous claim is one “that is both grossly disgraceful (or defamatory) and irrelevant to the action or defense.” Att’y Gen. of Rwanda v. Union Trade Ctr. Ltd. (UTC) & 19 Others, Appeal No. 2 of 2018, at 12 (May 29, 2019). (“[A] matter would only be scandalous if it would not be admissible in evidence to show the truth of any allegation in the pleading which is sought to be impugned. Such would be the case where an imputation is made on the character of a party when the character is not in issue.”).

A frivolous claim is one “lacking of legal basis or legal merit; not serious; not reasonably purposeful.’” Att’y Gen. of Rwanda v. Union Trade Ctr. Ltd. (UTC) & 19 Others, Appeal No. 2 of 2018, at 12 (May 29, 2019).

A vexatious claim is one “‘instituted maliciously and without good cause.’” Att’y Gen. of Rwanda v. Union Trade Ctr. Ltd. (UTC) & 19 Others, Appeal No. 2 of 2018, at 12 (May 29, 2019). (“A pleading would be vexatious if it annoys or tends to annoy” (citing Att’y Gen. of Rwanda v. Union Trade Ctr. (UTC), Appl. No. 1 of 2018, at 13 (Mar. 29, 2018))).

C. Abuse of Process

Abuse of process is defined as “the improper and tortious use of a legitimately issued Court process to obtain a result that is either unlawful or beyond the process scope.” Att’y Gen. of Rwanda v. Union Trade Ctr. Ltd. (UTC) & 19 Others, Appeal No. 2 of 2018, at 16 (May 29, 2019) (citing Black’s Law Dictionary (9 th ed.)) (“[I]t would have been an abuse of process to introduce amendments that went beyond the scope of leave granted . . . for collateral purposes” rather than to correct defects or errors in the pleadings); see also Castro Pius Shirima v. Att’y Gen. of Burundi & 6 Others, Appl. No. 3 of 2018, at 3 (May 9, 2018) (dismissed on account of abuse of court process for failure to serve parties and the appellant’s failure to appear).

B. PRELIMINARY OBJECTIONS

A preliminary objection is a “‘point of law which has been pleaded, or which arises in the course of pleadings and which, if argued as a preliminary point, may dispose of the suit.’” Att’y Gen. of Kenya v. Indep. Med. Legal Unit, Appeal No. 1 of 2011, at 6 (Mar. 15, 2012) (citing Mukisa Biscuit Mfg. Co. Ltd. v. West End Distributors Ltd. EA 696, at 700 (1969)); Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Appeal No. 2 of 2011, at 12 (Mar. 16, 2012). “The aim of a preliminary objection is to save the time of the court and the parties by notgoing into the merits of the application because there is a point of law that will dispose of the matter summarily.” Att’y Gen. of Uganda v. Media Legal Def. Initiative (MDLI) & 19 Others, Appeal No. 3 of 2016, at 15 (May 26, 2017) (citing Bank of Tanzania v. Devran P. Valambia (CAT) Civ. Appl. No. 15 of 2002).

“[O]nly those points that are pure law: which are unstained by facts or evidence, especially disputed points of fact or evidence” qualify as appropriate subjects of a preliminary objection. Att’y Gen. of Kenya v. Indep. Med. Legal Unit, Appeal No. 1 of 2011, at 7 (Mar. 15, 2012); Pontrilas Invs. Ltd. v. Central Bank of Kenya & Other, Ref. No. 8 of 2017, at 14-15 (July 4, 2019) (joint questions of “both law and fact” are not “proper preliminary point[s] of law”); Sec’y Gen. of EAC v. Rt. Hon. Margaret Zziwa, Appeal No. 7 of 2015, at 8 (May 27, 2016) (a preliminary objection “‘raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained . . .’”); James Katabazi & 21 Others v. Att’y Gen. of Uganda & 2 Others, Ref. No. 1 of 2007, at 7 (Nov. 1, 2007) (citing Mukisa Biscuit Mfg. Co. Ltd. v. West End Distributors Ltd. EA 696, at 700 (1969)). Factual or evidentiary issues instead are matters of “substantive adjudication of litigation on the merits” which requires “evidence adduced, facts shifted, testimony weighed, witnesses called, examined and cross-examined; and a finding of fact then made by the Court.” Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2011, at 18 (Mar. 15, 2012).

Examples of proper preliminary objections are “‘an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound . . . to refer the dispute to arbitration.” James Katabazi & 21 Others v. Att’y Gen. of Uganda & 2 Others, Ref. No. 1 of 2007, at 7 (Nov. 1, 2007) (quoting Mukisa Biscuit Mfg. Co. Ltd. v. West End Distributors Ltd. EA 696, at 700 (1969). As a preliminary objection, time limitation should be raised before the scheduling conference and in the Response to the Reference. Venant Masenge v. Att’y Gen. of Burundi, Ref. No. 9 of 2012, at 7 (June 18, 2014) (finding that to allow the time limitation issue to be raised for the first time in written submissions filed almost a year after the scheduling conference would not give the other party adequate time to prepare and would breach Rule 41 of the 2013 Rules (Rule 39 of the 2019 Rules), and accordingly declining to rule on the issue). A question of retroactivity as it relates to the application of the Treaty is also “a pure point of law.” Emmanuel Mwakisha Mjawasi & 748 Others v. Att’y Gen. of Kenya, Appeal No. 4 of 2011, at 15 (Apr. 27, 2012). To the extent that any consideration of the cause of action helps situate the objection, “it does not transform the principle of non retroactivity into a matter of facts.” Emmanuel Mwakisha Mjawasi & 748 Others v. Att’y Gen. of Kenya, Appeal No. 4 of 2011, at 15 (Apr. 27, 2012). And questions of justiciability, i.e., “whether [a] reference is properly before the Court,” can be “taken as a preliminary objection.” E. Afr. Law Soc’y & 4 Others v. Att’y Gen. of Kenya & 3 Others, Ref. No. 3 of 2007, at 8-9 (Aug. 31, 2008).

By contrast, questions about “whether the Applicant lied” are not matters for preliminary objection as “[l]ies or truth are matters of evidence” and “unless a preliminary objection is premised on a pure point of law and where facts are uncontested,” it must be overruled. Paul John Mhozya v. Att’y Gen. of Tanz., Appl. No. 13 of 2016, at 7 (July 7, 2017). Similarly, any issue, including “(i) time-bar, (ii) want of enabling provisions, (iii) ambiguous, scandalous, frivolous and vexatious suit (iv) defective affidavit . . . and (vi) the ‘mixed grill’ issue,” that involves “the clash of facts, the production of evidence, and the assessment of testimony” should not be “treated as a Preliminary Point. Rather, it becomes a matter of substantive adjudication of the litigation on the merits.” Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2011, at 18 (Mar. 15, 2012). The same is true of “the issue of appropriate reliefs,” which “is a function not of the court’s ‘jurisdiction,’ but of the court’s ‘powers.’ To mix up the two under the one rubric of jurisdiction . . . [is] to treat the issue as a preliminary objection . . . when the issue” is best suited for review “in the context of the merits of the case.” Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2011, at 16 (Mar. 15, 2012).

Pursuant to Rule 39(2) of the 2019 Rules, “a Respondent [must] raise a preliminary objection by giving notice . . . before the Scheduling Conference.” Rt. Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Ref. No. 17 of 2014, at 1 (Sept. 8, 2015) (citing Rule 41(2) of the 2013 Rules). “[A] Preliminary Objection should be pleaded in a Reference and all documentation in support thereof must be annexed to the Reference.” Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Ref. No. 10 of 2013, at 21 (Nov. 27, 2014). The party raising the objection must “serve upon the Court and other parties to the proceedings written Notice of grounds upon which the Objection is premised.” Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Ref. No. 10 of 2013, at 21- 22 (Nov. 27, 2014); see also Rt. Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Ref. No. 17 of 2014, at 2 (Sept. 8, 2015) (holding that “the party raising the preliminary objection “should have endeavoured to give 7 days’ notice to the Court and the Applicant of his intended preliminary objection.”).

“Once a notice of preliminary objection is given or lodged, the time to remedy the deficiency complained of lapses.” Att’y Gen. of Uganda v. Media Legal Def. Initiative (MDLI) & 19 Others, Appeal No. 3 of 2016, at 12-14 (May 26, 2017) (citations omitted). However, if pleadings have not closed under Rule 43 of the 2019 Rules, the party raising a preliminary objection does not “require any leave to amend the Reference” under Rule 48(a) of the 2019 Rules. Prof. Nyamoya Francois v. Att’y Gen. of Burundi & Other, Ref. No. 8 of 2011, at 19 (Feb. 28, 2014).

It is “expected that a diligent litigant [will] file[] all preliminary objections to the Reference at the time of filing its pleadings as is the expectation of Rule 41 of the Court’s Rules instead of doing so piecemeal.” Afr. Network for Animal Welfare (ANAW) v. Att’y Gen. of Tanz., Ref. No. 9 of 2010, at 13 (June 20, 2014) (citing Rule 41 of the 2013 Rules (Rule 39 of the 2019 Rules)). To raise a preliminary objection “at the tail end of the proceedings without allowing the other party to prepare an appropriate response [is] in breach of Rule 41 of the Court’s Rules and cannot be entertained.” Venant Masenge v. Att’y Gen. of Burundi, Ref. No. 9 of 2012, at 7 (June 18, 2014) (citing Rule 41 of the 2013 Rules (Rule 39 of the 2019 Rules)).

However, if the Court deems a preliminary objection “sufficiently important to address,” it may still address the issue [a]lthough a preliminary objection should ordinarily be raised at the earliest stage of any legal proceeding” Prof. Nyamoya Francois v. Att’y Gen. of Burundi & Other, Ref. No. 8 of 2011, at 18 (Feb. 28, 2014). A point of law that was not raised at the Scheduling Conference can nevertheless be considered by the Court, “since it is trite law that a point of law can be raised at any stage of the proceedings.” Emmanuel Mwakisha Mjawasi & 748 Others v. Att’y Gen. of Kenya, Ref. No. 2 of 2010, at 3 (Sept. 29, 2011); Emmanuel Mwakisha Mjawasi & 748 Others v. Att’y Gen. of Kenya, Appeal No. 4 of 2011, at 15-16 (Apr. 27, 2012) (“It is recognized, in our jurisprudence that for the attainment of substantive justice, a point of law can and should be raised at any time during the course of the proceedings, preferably at the earliest available opportunity.”).

On one hand, the Court has cautioned against the abuse of preliminary objections, which “[m]ore often than not” are “an unnecessary costly detour of the proceedings.” Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Appeal No. 2 of 2011, at 8-9 (Mar. 16, 2012) (commenting on the “growing tendency to commence the trial of References not on their merits but with preliminary objections on points of law” and noting that “[i]t is the duty of counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge will be capable of fashioning a winner’” (citing Ashmore v. Corp. of Lloyds 2 All ER 486, at 493 (1992))); Afr. Network for Animal Welfare (ANAW) v. Att’y Gen. of Tanz., Ref. No. 9 of 2010, at 13 (June 20, 2014) (quoting Mukisa Biscuit Mfg. Co. Ltd. v. West End Distributors Ltd. EA 696 (1969)); Att’y Gen. of Kenya v. Indep. Med. Legal Unit, Appeal No. 1 of 2011, at 6 (Mar. 15, 2012) (noting that “the improper raising of points by way of preliminary objections does nothing but unnecessarily increase costs and, on occasion, confuse the issues” (quoting Mukisa Biscuit Mfg. Co. Ltd. v. West End Distributors Ltd. EA 696 (1969))).

For example, where a preliminary objection relates to “a point of law stipulated by [an] Article” of the Treaty, like “the issue of jurisdiction,” the Court cannot “abstain[] from categorically and effectually analysing the allegations pleaded and discussed by both parties, to demonstrate how those facts were related to the Court’s decision on jurisdiction.” Att’y Gen. of Kenya v. Indep. Med. Legal Unit, Appeal No. 1 of 2011, at 10 (Mar. 15, 2012). But where a reference presents the issue of jurisdiction as “a mixed question of both fact and law . . . the First Instance Division ought to” analyse “the allegations of lack of jurisdiction in the light of both the law and facts as presented.” Att’y Gen. of Kenya v. Indep. Med. Legal Unit, Appeal No. 1 of 2011, at 11 (Mar. 15, 2012). In such a case, considering the issue as a preliminary objection “disadvantages both the Applicant and the Respondent, as well as the judicial process itself. This is uniquely so where . . . the Parties disagree[] virtually on every fact that [gives] rise to the background to the suit.” Att’y Gen. of Kenya v. Indep. Med. Legal Unit, Appeal No. 1 of 2011, at 6 (Mar. 15, 2012).

On the other hand, failure to adjudicate a preliminary objection when raised that “would have disposed of the proceedings summarily . . . greatly prejudice[s]” the party raising it “through loss of his/her precious resources, such as time, money, etc.” and denial of “his/her vested right to have the matter disposed of at the threshold, thereby, occasioning a failure of justice.” Att’y Gen. of Uganda v. Media Legal Def. Initiative (MDLI) & 19 Others, Appeal No. 3 of 2016, at 15-16 (May 26, 2017). This failure of justice whether “inadvertent or not . . . render[s] all the subsequent proceedings a nullity.” Att’y Gen. of Uganda v. Media Legal Def. Initiative (MDLI) & 19 Others, Appeal No. 3 of 2016, at 15-16 (May 26, 2017) (quoting Thabit R. Maziku and Kisuku S. Kaptula v. Amina K. Tyela and Mrajis wa Nyaraka Zanzibar (CAT) Civil Application No. 98 of 201) . Because the determination of a preliminary objection “could dispose of the entire Reference,” it should be dealt with straightaway. Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2011, at 18 (Mar. 15, 2012). Att’y Gen. of Uganda v. Media Legal Def. Initiative (MDLI) & 19 Others, Appeal No. 3 of 2016, at 12 (May 26, 2017). “[A]n illegality once brought to the attention of the court, overrides all questions of pleading including any admissions made between the parties” and “must be resolved by the court even at the risk of making the judgement frighteningly long.” (citing Uganda Railway Corporation v. Ekwaro D.G. & 5104 Others (UCA) U.L.R. [2018] 319).

C. SCHEDULING CONFERENCE

Pursuant to Rule 63 of the 2019 Rules, at a Scheduling Conference, “all matters in controversy between parties are considered and reduced into issues for determination by the Court.” Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Ref. No. 17 of 2014, at 10 (Feb. 3, 2017); James Alfred Koroso v. Att’y Gen. of Kenya & Other, Ref. No. 12 of 2014, at 24-25 (Mar. 24, 2016) (whereas “issues in civil cases emerge or are framed from what is contained in the pleadings filed by the Parties in court . . . issues for determination by this Court are normally framed during the Scheduling Conference.”); Abdu Katuntu v. Att’y Gen. of Uganda & Other, Ref. No. 5 of 2012 at 17 (Nov. 25, 2013) (“[T]he rationale for scheduling is to agree and narrow down the issues for resolution by the Court.”) 4 ; James Katabazi & 21 Others v. Sec’y Gen. of EAC & Other, Ref. No. 1 of 2007, at 6 (Nov. 1, 2007) (“[I]t is at [a scheduling] conference [ where] points of agreement and disagreement are sorted out.”). Failure to appear “at the Scheduling Conference amounts to . . . abuse of the Court process.” Castro Pius Shirima v. Att’y Gen. of Burundi & 6 Others, Appl. No. 3 of 2018, at 3 (May 9, 2018).

Procedural points can also be decided at the Scheduling Conference. Sec’y Gen. of EAC v. Rt. Hon. Margaret Zziwa, Appeal No. 7 of 2015, at 21 (May 27, 2016) (respondent who “elected at the Scheduling Conference to offer oral evidence” could not submit affidavit as evidence unless it was “tendered as an exhibit”); Att’y Gen. of Uganda v. E. Afr. Law Soc’y & Other, Appl. No. 1 of 2013, at 3 (May 17, 2013) (“It is common ground that at the Scheduling Conference, parties had consented that all evidence would be tendered by way of Affidavits.”); Legal Brains Tr. (LBT) Ltd. v. Att’y Gen. of Uganda, Ref. No. 10 of 2011, at 5 (Mar. 30, 2012) (at the Scheduling Conference, “[c]ounsel requested the Court dispense with oral arguments due to the urgency of the matter and we allowed them.”).

When Counsel addresses the Court with only certain averments from its pleading, the other averments are regarded by the Court as abandoned. See E. Afr. Law Soc’y & 4 Others v. Att’y Gen. of Kenya & 3 Others, Ref. No. 3 of 2007, at 6-7 (Aug. 31, 2008). “An agreed fact [at the Scheduling Conference] cannot be deemed to be in issue.” Rwenga Etienne & Other v. Sec’y Gen. of EAC, Ref. No. 7 of 2015, at 18 (Mar. 23, 2016); see Venant Masenge v. Att’y Gen. of Burundi, Ref. No. 9 of 2012, at 7-8 (June 18, 2014) (if a party fails to raise the defence that a claim is time-barred during (or before) a Scheduling Conference, the defence is forfeited).

The Scheduling Conference for an appeal is governed by Rule 110 of the 2019 Rules. Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others, Appeal No. 2 of 2011, at 5 (Mar. 16, 2012) (Rule 99 of the 2013 Rules (Rule 110 of the 2019 Rules)).

Pre-trial proceedings in the Court [Rule 63] (1) Scheduling conference of the Court

Before commencement of the substantive proceedings, the First Instance Division is required to hold a scheduling conference within 14 days after the close of pleadings. The conference seeks to ascertain:

  • Points of agreement and disagreement between the parties;
  • The possibility of mediation, conciliation or any other form of settlement;
  • Whether evidence is to be oral or by affidavit and the time limit within which such affidavits are to be filed and served;
  • Whether legal argument(s) shall be written, oral, or both;
  • The estimated length of the hearing;
  • Consolidation of references, claims and/or applications
  • Any other matter(s) the Court deems necessary.

If the case has prospects for settlement, the Court directs that the case proceed to mediation or other form of settlement [Rule 64(1)].

If the matter is to proceed to hearing the Court fixes the date for the commencement of hearing [Rule 63(6)].

Where there is no need for evidence and all the parties opt to present their respective legal arguments in writing, the Court prescribes the time within which each party is to file its written legal arguments and may fix the date(s) on which the parties shall appear before the Court (comprising three or five judges) to deal with any other matter the Court thinks necessary [Rule 63(7)].

D. AMICUS CURIAE & INTERVENERS ARTICLE 40

A Partner State, the Secretary General or a resident of a Partner State who is not a party to a case before the Court may, with leave of the Court, intervene in that case, but the submissions of the intervening party shall be limited to evidence supporting or opposing the arguments of a party to the case.

A third party (party not originally party to a claim or reference) can join an action as an amicus curiae or as an intervener. While both “amici curae and interveners serve courts in an advisory, non-binding capacity” Att’y Gen. of Burundi v. Sec’y Gen. of the EAC, Ref. No. 2 of 2018, at 7 (July 2, 2019), there are differences in their roles:

(1) An intervener “may advocate a point of view in support of one party over another,” whereas an amicus curiae is not permitted to do so, Fred Mukasa Mbidde v. Att’y Gen. of Burundi & Other, Appl. No. 6 of 2018, at 24 (Apr. 24, 2018) (quoting UHAI EASHRI & Other v. Human Rights Awareness & Promotion Forum (HRAPF) & Other, Appls. Nos. 20 & 21 of 2014, at 13 (Feb. 17, 2015)) (citing Trusted Society of Human Rights Alliance vs. Mumo Matemo & 5 Others, Supreme Court of Kenya at Nairobi Petition No. 12 (2013)); and

(2) An amicus curiae can address the Court on questions of law and fact, while an intervener is restricted by Treaty Article 40 to questions of fact only, Fred Mukasa Mbidde v. Att’y Gen. of Burundi & Other, Appl. No. 6 of 2018, at 24-25 (Apr. 24, 2018); see also Att’y Gen. of Burundi v. Sec’y Gen. of the EAC, Ref. No. 2 of 2018, at 6 (July 2, 2019) (“respectfully disregard[ing]” intervention with respect to questions of law).

When a third party joins a case as an intervener or amicus curiae, that third party does not need locus standi in the same way an original party to a reference would. For example, although a non-resident of a Partner State would not have locus standi under Article 30 of the Treaty, the non- resident “would very well be entitled to apply for leave to intervene in a matter or be joined as amicus curiae.” Fred Mukasa Mbidde v. Att’y Gen. of Burundi & Other, Appl. No. 6 of 2018, at 24-25 (Apr. 24, 2018) (finding that an EALA member whose residency was not in question could appear as an intervener before the Court). Conversely, a claimant who has standing to bring a reference would not necessarily have standing to appear as an amicus curiae unless they “satisfy the parameters highlighted in Rule 36 of the Rules.” UHAI EASHRI & Other v. Human Rights Awareness & Promotion Forum (HRAPF) & Other, Appls. Nos. 20 & 21 of 2014, at 9 (Feb. 17, 2015) (citing Rule 36 of the 2013 Rules (Rules 59 and 60 of the 2019 Rules)).

The Court scrutinises the motivations of the third party seeking to join the reference with great care. The party seeking to join must “demonstrate that it has an interest in the outcome of the substantive Reference” and “must establish to the satisfaction of the Court circumstances that prima facie justify its appearance.” See UHAI EASHRI & Other v. Human Rights Awareness & Promotion Forum (HRAPF) & Other, Appls. Nos. 20 & 21 of 2014, at 8 (Feb. 17, 2015). “If the Court is satisfied that the application is justified, it shall allow the intervention and fix a time within which the intervener or amicus curiae may submit a statement of intervention and the Registrar shall supply to the intervener or amicus curiae copies of the pleadings.” Media Legal Def. Initiative (MDLI) & 19 Others v. Ronald Ssembuusi & Other, Appl. No. 4 of 2015, at 12, 15 (Sept. 20, 2017) (approving amicus curiae application where a group of 20 international NGOs focused on the promotion of freedom of expression, freedom of the press, and the right to access information had sufficient interest because their mandate and expertise was focused on the issues presented in the reference and they desired “to share the knowledge gathered with a view to contributing to legal jurisprudence” (citing Rule 36 of the 2013 Rules(Rules 59 and 60 of the 2019 Rules))).

I. A MICUS C URIAE A. Applications

An amicus curiae means a “[f]riend of court. Someone who is not a party to a lawsuit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter.” Att’y Gen. of Uganda v. Media Legal Def. Initiative(MLDI), Cons. Appls. Nos. 4 & 6 of 2018, at 29-30 (May 28, 2019) (citing amicus curiae, Black’s Law Dictionary (10 th ed.) (2014)). The Court has “wide discretion to ask for assistance of a[n amicus curiae] if it considers that the interests of justice would be served,” Avocats Sans Frontiers v. Mbugua Mureithi Wa Nyambura & 2 Others, Appl. No. 2 of 2013, at 4 (Aug. 28, 2013) (citing Dritoo v. Nile District Administration, EA 428 (1968)).

An amicus curiae application shall be granted by the Court so long as it is justified. Avocats Sans Frontiers v. Mbugua Mureithi Wa Nyambura & 2 Others, Appl. No. 2 of 2013, at 4 (Aug. 28, 2013) (citing Dritoo v. Nile District Administration, EA 428 (1968)); see also FORSC & 6 Others v. Burundian Journalists’ Union & Other, Appl. No. 2 of 2014, at 6 (Aug. 15, 2014) (“[T]he admission or non-admission of an amicus curiae to any judicial proceeding is a matter of discretion.”), but that discretion must be exercised judiciously. Secretariat of the Joint United Nations Programme on HIV/AIDS v. Human Rights Awareness & Promotion Forum (HRAPF) & Other, Appl. No. 3 of 2015, at 8 (Nov. 25, 2015) (citing Avocats Sans Frontiers v. Mbugua Mureithi Wa Nyambura & 2 Others, Appl. No. 2 of 2013 (Aug. 28, 2013)).

To determine whether the joinder of an applicant as amicus curiae is proper, the Court considers:

a. Impartiality—Whether the prospective amicus curiae is “neutral, impartial, and independent of the parties to an adversarial dispute.”

b. Expertise—Whether the prospective amicus curiae has “demonstrate[d] reasonable expertise in the [dispute’s] subject matter, as well as its fidelity to the law.”

c. Public Interest—Whether the case involves “important questions of law in an area of public interest.”

d. Sua Sponte Powers—Whether the proposed questions of law are a matter of concern to the Court, even if they do not concern the parties involved in the dispute.

e. Interests of Justice—Whether granting the amicus application is in the interest of justice.

Media Legal Def. Initiative (MLDI) & 19 Others v. Ronald Ssembuusi & Other, Appl. No. 4 of 2015, at 14 (Sept. 20, 2017) ) .

The Court may grant an amicus curiae application without the consent of either party, although it does consider the opinion of the parties “important.” Secretariat of the Joint United Nations Programme on HIV/AIDS v. Human Rights Awareness & Promotion Forum (HRAPF) & Other, Appl. No. 3 of 2015, at 13 (Nov. 25, 2015); In the Matter of a Request by the Council of Ministers of the EAC for an Adv. Op., Appl. No. 1 of 2008, at 4 (2009) (accepting procedurally improper amicus curiae application where the matter was sufficiently important and given lack of opposition from the parties.

Another fundamental consideration is that the amicus curiae must be “independent of the dispute between the Parties.” See, e.g., Avocats Sans Frontiers v. Mbugua Mureithi Wa Nyambura & 2 Others, Appl. No. 2 of 2013, at 5 (Aug. 28, 2013) (citing AG of Uganda vs. Silver Springs Hotel Ltd and Others SCCA No. 1 (1989)). While a special interest group that is “demonstrably non-neutral” may not be an amicus curiae, UHAI EASHRI & Other v. Human Rights Awareness & Promotion Forum (HRAPF) & Other, Appls. Nos. 20 & 21 of 2014, at 12-13 (Feb. 17, 2015), a mere scholarly interest in a proceeding’s subject matter does not necessarily evidence a lack of impartiality and is distinct “from the unprincipled, often unresearched, ‘rights- based’ agitation that is typified by pressure groups and lobbyist organizations,” Media Legal Def. Initiative (MLDI) & 19 Others v. Ronald Ssembuusi & Other, Appl. No. 4 of 2015, at 15-16 (Sept. 20, 2017); Secretariat of the Joint United Nations Programme on HIV/AIDS v. Human Rights Awareness & Promotion Forum (HRAPF) & Other, Appl. No. 3 of 2015, at 11-12 (Nov. 25, 2015) (rejecting contention that the applicant’s statements against Uganda’s anti- homosexuality law was an expression of bias or impartiality).

A court’s decision to admit an amicus curiae is unappealable, as an appeal would amount to “usurping the Court’s discretion.” See Att’y Gen. of Uganda v. Media Legal Def. Initiative (MLDI), Cons. Appls. Nos. 4 & 6 of 2018, at 30 (May 28, 2019).

B. Submissions

i. An amicus brief should be limited to legal argument;

ii. The relationship between amicus curiae, the principal parties and the direction of amicus intervention, ought to be governed by the principle of neutrality, and fidelity to the law;

iii. An amicus brief should address point(s) of law not already addressed by the Parties to the suit or by other amici, so as to introduce only novel aspects of the legal issue in question that aid the development of the law;

iv. Where, in adversarial proceedings, Parties allege that a proposed amicus curiae is biased, or hostile towards one or more of the parties, or where the Applicant, through previous conduct, appears to be partisan on an issue before the Court, the Court will consider such an objection by allowing the respective Parties to be heard on the issue . . .;

v. The Court will regulate the extent of amicus participation in proceedings, to forestall the degeneration of amicus role to partisan role;

vi. In appropriate cases and at its discretion the Court may assign questions for amicus research and presentation;

vii. The Applicant ought to be neutral in the dispute, where the dispute is adversarial in nature;

viii. The Applicant ought to show that the submissions intended to be advanced will give such assistance to the Court as would otherwise not have been available. The Applicant ought to draw the attention of the Court to relevant matters of law or fact which would otherwise not have been taken into account. Therefore, the Applicant ought to show that there is no intention of repeating arguments already made by the Parties. And such new matter as the Applicant seeks to advance, must be based on the data already laid before the Court, and not fresh evidence;

ix. The Applicant ought to show expertise in the field relevant to the matter in dispute, and in this regard, general expertise in law does not suffice;

x. Whereas consent of the Parties, to proposed amicus role, is a factor to be taken into consideration, it is not the determining factor.

Secretariat of the Joint United Nations Programme on HIV/AIDS v. Human Rights Awareness & Promotion Forum (HRAPF) & Other, Appl. No. 3 of 2015, at 8-10 (Nov. 25, 2015) (citing Mumo Matemu & Others v. Kenya Section of the International Commission of Jurists & Anor, Supreme Court of Kenya at Nairobi Petition No. 12 (2013)), (citations omitted). Similar to the underlying parties, an amicus curiae gives oral arguments at the hearing “of their written submissions.” In the Matter of a Request by the Council of Ministers of the EAC for an Adv. Op., Appl. No. 1 of 2008, at 5 (2009).

In sum, an amicus curiae “assists the court by providing information so that the Court will not fall into error, but does not seek to influence the final outcome or attempt to persuade the Court to adopt a particular view, whether or not he has a direct interest in the outcome.” Media Legal Def. Initiative (MDLI) & 19 Others v. Ronald Ssembuusi & Other, Appl. No. 4 of 2015, at 15 (Sept. 20, 2017); Calist Andrew Mwatela & 2 Others v. EAC, Appl. No. 1 of 2005, at 24 (Oct. 3, 2006) (commending “the amicus curae [sic] who very ably and conscientiously assisted the Court without any attempt to side with any other party in the reference”). Otherwise, the amicus curiae would “risk losing the respect and friendship of the Court.” UHAI EASHRI & Other v. Human Rights Awareness & Promotion Forum (HRAPF) & Other, Appls. Nos. 20 & 21 of 2014, at 12 (Feb. 17, 2015) (citing FORSC & 6 Others v. Burundian Journalists’ Union & Other, Appl. No. 2 of 2014 (Aug. 15, 2014)); Media Legal Def. Initiative (MDLI) & 19 Others v. Ronald Ssembuusi & Other, Appl. No. 4 of 2015 (June 28, 2016) (amicus curiae has a duty “to restrict its brief ‘to the most cogent and impartial information’” (citing FORSC & 6 Others v. Burundian Journalists’ Union & Other, Appl. No. 2 of 2014 (Aug. 15, 2014))); Secretariat of the Joint United Nations Programme on HIV/AIDS v. Human Rights Awareness & Promotion Forum (HRAPF) & Other, Appl. No. 3 of 2015, at 11-12 (Nov. 25, 2015) (amicus curiae risks “being ignored” by a Court if it exhibits “partiality” or a “lack of fidelity” to its role); Avocats Sans Frontiers v. Mbugua Mureithi Wa Nyambura & 2 Others, Appl. No. 2 of 2013, at 6 (Aug. 28, 2013) (“[A]n amicus has a special duty . . . to provide cogent and helpful submissions that assist the Court” (citing Re Certain Amicus Curiae Applications: Minister of Health and Others vs Treatment Action Campaign and Others 2002 (5) SA 713 (CC), ¶5)).

That said, it is ultimately the Court’s duty to “determine the neutrality of positions advanced in an amicus brief.” It has the discretion to disregard an amicus brief that advances a “biased, irrational and unresearched premise.” Media Legal Def. Initiative (MDLI) & 19 Others v. Ronald Ssembuusi & Other, Appl. No. 4 of 2015, at 16 (Sept. 20, 2017); Media Legal Def. Initiative (MDLI) & 19 Others v. Ronald Ssembuusi & Other, Appl. No. 4 of 2015 (June 28, 2016), at 10 (“[C]ourts are at liberty to disregard amicus briefs that seek to influence the final outcome or attempt to persuade the court one way or another.”); FORSC & 6 Others v. Burundian Journalists’ Union & Other, Appl. No. 2 of 2014, at 10 (Aug. 15, 2014) (“[U]ltimate[ly,] control over what the amicus can do [stems from] the Court itself.”); Avocats Sans Frontiers v. Mbugua Mureithi Wa Nyambura & 2 Others, Appl. No. 2 of 2013, at 6 (Aug. 28, 2013) (Court must be “vigilant and ensure that the [amicus curiae] will not overstep its amicus curiae brief and ensure that its actions do not favour any of the Parties.”).

II. INTERVENTION

As with an amicus curiae application, the Court has “discretion to allow any intervention if it considers that the interests of justice would be served.” Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Appl. No. 4 of 2017, at 10-11 (Sept. 22, 2017). Pursuant to Rules 59 and 60 of the 2019 Rules, an application for leave to appear as amicus curiae or intervener must be made by notice of motion and must include a “statement of the intervener’s or amicus curiae’s interest in the result of the case.” Avocats Sans Frontiers v. Mbugua Mureithi Wa Nyambura & 2 Others, Appl. No. 2 of 2013, at 5 (Aug. 28, 2013) (citing Rule 36(2)(e) of the 2013 Rules (Rule 59(2)(e) of the 2019 Rules)); Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Appl. No. 9 of 2014, at 8 (Mar. 29, 2017) (“[T]he word used in these provisions is “shall” meaning the aforesaid conditions are mandatory to an application seeking intervention in a pending reference before this Court”). However, Rule 59 of the 2019 Rules (Rule 36 of the 2013 Rules), now sets forth these requirements only for interveners and not amicus curiae; UHAI EASHRI & Other v. Human Rights Awareness & Promotion Forum (HRAPF) & Other, Appls. Nos. 20 & 21 of 2014, at 6 (Feb. 17, 2015). Fred Mukasa Mbidde v. Att’y Gen. of Burundi & Other, Appl. No. 6 of 2018, at 15 (Apr. 24, 2018) (“Rule 36(2)(e) requires a notice of motion in an application for leave to intervene to ‘contain’ specified details, including a statement of the intervener’s interest in the result of the case.).

RULE 59

(1) An application for leave to intervene under Article 40 of the Treaty shall be by notice of motion.

(2) An application under sub-rule (1) shall contain:—

(a) a description of the parties;

(b) the name and address of the intervener as required under rule 33;

(c) a description of the claim or reference;

(d) the order in respect of which the intervener is applying for leave to intervene; and

(e) a statement of the intervener’s interest in the result of the case.

(3) The applicant shall serve on each party who shall, within fourteen (14) days, file and serve a response.

(4) If the Court is satisfied that the application is justified, it shall allow the intervention and fix a time within which the intervener may submit a statement of intervention and the Registrar shall supply to the intervener copies of the pleadings.

(5) The intervener shall accept the case as it is at the time of intervention.

(6) Where a request to intervene is granted, the decision of the Court in respect of the dispute or reference shall be binding upon the intervener in respect of the intervention.

The statement of interest required by Rule 59 of the 2019 Rules may be included anywhere within the grounds of the application. Fred Mukasa Mbidde v. Att’y Gen. of Burundi & Other, Appl. No. 6 of 2018, at 18 (Apr. 24, 2018) (interpreting the same provision in Rule 36(2) of the 2013 Rules). Statements of interest may not, however, be in an affidavit in support of the application. They must be within the application itself. Fred Mukasa Mbidde v. Att’y Gen. of Burundi & Other, Appl. No. 6 of 2018, at 16-17 (Apr. 24, 2018). When there are multiple interveners in a reference, the Court may allow them to share one statement of intervention. Among A. Anita v. Att’y Gen. of Uganda & Other, Ref. No. 6 of 2012, at 2-3 (Nov. 29, 2013).

In order to successfully intervene, the Court has noted that an applicant must demonstrate that:

1) “The nonparty has a direct and immediate interest in the litigation;

2) “Intervention will not enlarge the issues in the case; and

3) “The reasons for intervention outweigh any opposition by the existing parties.”

Fred Mukasa Mbidde v. Att’y Gen. of Burundi & Other, Appl. No. 6 of 2018, at 25 (Apr. 24, 2018) (citing Folcik v. Orange Cty. Registrar of Voters & Another, Superior Court of the State of California Case No. 30-2012-00553905). In Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Appl. No. 4 of 2017, at 12 (Sept. 22, 2017), the Court noted, in allowing interveners to join a case, that “an intervener is not entitled to widen or add on to the points in issue.”

Because the partisan nature of intervention may result in the intervener “largely re-echoing the submissions of . . . the Respondent,” the Court will “give deference to the Party’s submissions and shall only consider the intervener’s intervention to the extent that it raises matters on the subsisting issues that have not otherwise been canvassed by the Respondent.” Att’y Gen. of Burundi v. Sec’y Gen. of the EAC, Ref. No. 2 of 2018, at 8 (July 2, 2019).

E. APPLICATIONS RULE 52

(1) Subject to sub-rule (4) of this Rule, all applications to the Court shall be by notice of motion, which shall state the grounds of the application.

(2) No application shall be heard without notice to the parties affected by the application:- Provided, however, that if the Court is satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable injustice, may hear the application and make any ex parte order upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the Court deems just.

(3) Upon making an ex parte order the Court shall set down the application for hearing inter partes within thirty (30) days of the ex parte order.

(4) A notice of motion shall be substantially in the format provided in the Fourth Schedule to the 2019 Rules.

(2) Every formal application to the Court shall be supported by one or more affidavits of the applicant or of some other person or persons having knowledge of the facts, in accordance with Form 3 of the Second Schedule to the 2019 Rules.

(3) An applicant may, with the leave of the Court or with the consent of the other party, lodge one or more supplementary affidavits.

(4) The provisions of this rule shall not apply to:-

(a) applications made in the course of a hearing, which may be made informally; or

(b) applications made by consent of all parties, which may be made by a letter.

(5) The Court may on application by the applicant for sufficient reason before the hearing, grant leave for amendment of the notice of motion on such terms as it deems fit.

I. NOTICE OF MOTION

Rule 52(1) “provides the procedure governing ALL applications before this Court, stating that they shall be by notice of motion, which Motion shall state the grounds therefor.” Fred Mukasa Mbidde v. Att’y Gen. of Burundi & Other, Appl. No. 6 of 2018, at 15 (Apr. 24, 2018) (referencing Rule 21(1) of the 2013 Rules (Rule 52 of the 2019 Rules)); Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Appl. No. 9 of 2014, at 8 (Mar. 29, 2017).

A “Notice of Motion” under Rule 51 “requires a supporting affidavit, but does not need to specify any substantive information concerning the particulars of the complaint.” Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2011, at 19 (Mar. 15, 2012); see also Att’y Gen. of Uganda v. Media Legal Def. Initiative (MDLI) & 19 Others, Appeal No. 3 of 2016, at 17–18 (May 26, 2017) (holding that “[w]ithout a valid supporting affidavit, the Application, by any stretch of imagination, could not be said or held to have been competently before the Trial Court.”). Where a party has submitted an “Application [that] was instituted by a Notice of Motion in terms of” Rule 52(1) of the 2019 Rules and where “[i]t is evident from the Notice of Motion itself that it is supported by [an] Affidavit,” the party has “complied with” “the requirements . . . on the face of [the Notice of Motion].” Att’y Gen. of Uganda v. Media Legal Def. Initiative (MDLI) & 19 Others, Appeal No. 3 of 2016, at 14 (May 26, 2017).

“[A] Notice of Motion [can] be answered by a counter-affidavit.” Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2011, at 19 (Mar. 15, 2012).

Because there are various types of applications, certain applications may require procedural compliance with both Rule 52 of the 2019 Rules and the court rule specifically tailored to the type of application at issue. Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Appl. No. 9 of 2014, at 9 (Mar. 29, 2017) (holding that the application was incorrectly filed for failure to comply with Rule 36(2)(e) of the 2013 Rules (Rule 59(2)(e) of the 2019 Rules) despite adequate compliance with Rule 21(1) of the 2013 Rules (Rule 52(1) of the 2019 Rules)).

II. EXPARTE APPLICATIONS

The Court may hear an application ex parte at the first instance once it has clearly determined that the matter is urgent. See Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Appl. No. 23 of 2014, at 5 (Dec. 16, 2014); Wani S. Jada v Att’y Gen. of South Sudan, Appl. No. 8 of 2017, at 3-4 (June 5, 2017) (noting that an ex parte application may be heard in the First Instance Division if the court is “satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable injustice” and finding that the Applicant’s application “could be rendered nugatory if the Respondents are not restrained” immediately); see also E. Afr. Civil Soc’y Orgs. Forum (EACSOF) v. Att’y Gen. of Burundi & 2 Others, Appl. No. 5 of 2015, at 4 (July 29, 2015) (declining to hear the application ex parte because “the urgency that presumably underscored the Application for ex parte interim orders no longer prevailed”). The Court must be “satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable injustice.” See Hassan Basajjabalaba & Other v. Att’y Gen. of Uganda, Appl. No. 9 of 2018, at 3 (Apr. 24, 2018) (referencing Rule 21 of the 2013 Rules (Rule 52 of the 2019 Rules)) (finding no irreparable injustice where the applicant was already the beneficiary of a protective order issued by a Partner State); Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Appl. No. 23 of 2014, at 4 (Dec. 16, 2014) (applying same definition and granting ex parte interim order).

Alternatively, under Rule 84(2) of the 2019 Rules, the Court can grant an ex parte interim order “if satisfied that it is just to do so.” Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Appl. No. 23 of 2014, at 4 (Dec. 16, 2014) (permitting application to be heard ex parte when the subject at issue would be affected by EALA action scheduled to take place the next day); Freeman A. Mbowe & 3 Others v. Att’y Gen. of Tanz., Appl. No. 2 of 2019, at 2 (June 19, 2019) (referring to Rule 73(2) of the 2013 Rules (Rule 84(2) of the 2019 Rules). The burden of meeting this requirement is “high.” Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Appl. No. 23 of 2014, at 7 (Dec. 16, 2014); UPRONA Party & 2 Others v. Att’y Gen. of Burundi & Other, Appl. No. 4 of 2014, at 10-11 (Aug. 15, 2014) (holding that without persuasive material placed before the Court, the Court declined to take “the drastic action of suspending the law without hearing all parties on the merits.”). Ex parte orders may be granted if any “flagrant illegality” exists, including blatant disregard for court orders. Francis Ngaruko v. Att’y Gen. of Burundi, Appl. No. 3 of 2019 (June 20, 2019), at 3-4.

“Even after granting an ex parte hearing for a Notice of Motion, the Court may decide at the hearing that it is sufficiently important that the Respondents are given an opportunity to be heard that the hearing should be delayed until an inter parte hearing date can be said.” See, e.g., Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 5 Others, Ref. No. 1 of 2006, at 2–3 (Nov. 27, 2006).

III. INTERIM ORDERS

The grant of interim orders is governed by Article 39 of the Treaty and Rule 83 of the 2019 Rules. Alice Nijimbere v. Sec’y Gen. of EAC, Appl. No. 11 of 2015, at 3-4 (Nov. 11, 2015) (referring to Rule 73 of the 2013 Rules).

Whereas a final order is one that “signifies a judgment or an order which disposes of the case as to all the parties, reserving no further questions or directions for future determination,” E. Afr. Law Soc’y v. Att’y Gen. of Burundi & Other, Appl. No. 3 of 2014, at 10 (Aug. 15, 2014) (citing Republic of Philippines v. Sandiganbayan, Supreme Court of Philippines G.R. No. 152375 (2011)), an interim or interlocutory order is a “temporary court decree that remains in effect” pending the final decision in a reference. UPRONA Party & 2 Others v. Att’y Gen. of Burundi & Other, Appl. No. 4 of 2014, at 8 (Aug. 15, 2014) (citing Interim Order, Black’s Law Dictionary, (9th ed.) (2009) (an interim order is “a temporary court decree that remains in effect for a specified time until a specified event.”); E. Afr. Law Soc’y v. Att’y Gen. of Burundi & Other, Appl. No. 3 of 2014, at 10 (Aug. 15, 2014) (citing Republic of Philippines v. Sandiganbayan, Supreme Court of Philippines G.R. No. 152375 (2011)) (an order is interlocutory “if it leaves substantial proceedings yet to be had in connection with the controversy. It does not end the task of the court in adjudicating the parties’ contentions and determining their rights and liabilities as against each other.”). When issuing an interlocutory order, the Court’s task is not to determine the merits of the underlying Reference. E. Afr. Law Soc’y v. Att’y Gen. of Burundi & Other, Appl. No. 3 of 2014, at 10 (Aug. 15, 2014) (finding proposed order to stay to be final in nature instead of interlocutory because the request is identical to prayers of the underlying reference). “[I]nterim orders are not final although they are as binding as final decisions.” UPRONA Party & 2 Others v. Att’y Gen. of Burundi & Other, Appl. No. 4 of 2014, at 8 (Aug. 15, 2014).

A. Stay of Proceedings

“This Court has discretion . . . to stay the proceedings for sufficient cause.” Omar Awadh Omar & 6 Others v. Att’y Gen. of Kenya & 2 Others, Appl. No. 4 of 2011, at 3 (Feb. 28, 2012); Att’y Gen. of Uganda v. E. Afr. Law Soc’y & Other, Appl. No. 1 of 2013, at 17 (May 17, 2013) (noting that Rule 1(2) of the 2013 Rules (Rule 4 of the 2019 Rules) endows the Court with inherent powers to order a stay of proceedings); Att’y Gen. of Uganda v. E. Afr. Law Soc’y, Appl. No. 7 of 2012, at 8-9 (Feb. 14, 2013) (finding that “the inherent power in granting or refusing the stay of proceedings derives from” Rule 1(2) of the 2013 Rules (Rule 4 of the 2019 Rules)). The Court “may be made by the Court either on its own motion or upon being so moved by any of the Parties.” Sec’y Gen. of EAC v. Rt. Hon. Margaret Zziwa, Appl. No. 12 of 2015, at 13 (Jan. 29, 2016) (finding that Rule 21(1) and (4) of the 2013 Rules (Rule 52(1) and (4) of the 2019 Rules) “clearly provide[] the procedure . . . [that] gives effect to” Rule 110(1) of the 2013 Rules (Rule 87 of the 2019 Rules) for applications for stays of proceedings” but that “the present Application was wrongly brought under Rule 1(2)” and nevertheless declining to “go so far as to strike out the Application”)

Factors a court may consider in ordering a stay include a balance of conveniences, the likelihood of injury that “cannot be adequately compensated,” and whether there are “multiple proceedings pending in both Divisions of the Court and the decision of the Appellate Division might affect the outcome of the other proceedings.” Att’y Gen. of Uganda v. E. Afr. Law Soc’y, Appl. No. 7 of 2012, at 9-10 (Feb. 14, 2013).

Pursuant to Rule 87 of the 2019 Rules, the Court can order a stay of a case based on a pending appeal in that case. An interlocutory appeal is not “an automatic basis for the stay of proceedings before this Court.” Sec’y Gen. of EAC v. Rt. Hon. Margaret Zziwa, Appl. No. 12 of 2015, at 13 (Jan. 29, 2016). But where an appeal has “reasonable chances of success,” a stay can be warranted. Sec’y Gen. of EAC v. Rt. Hon. Margaret Zziwa, Appl. No. 12 of 2015, at 22 (Jan. 29, 2016) (denying application for stay when only a notice of appeal, and not a memorandum of appeal, had been filed) (referencing Mobile Producing Nigeria Unlimited v. His Royal Highness Oba Yinusa A. Ayeni & Others CA/L/255/5; Silverstein v. Chesoni (2002) 1 EA 296 (Court of Appeal, Kenya). Only a prima facie showing is required: “[A] trial court need not delve into the merits thereof for an application for stay of proceedings pending such appeal to succeed.” Sec’y Gen. of EAC v. Rt. Hon. Margaret Zziwa, Appl. No. 12 of 2015, at 17-18 (Jan. 29, 2016) (citing Omar Awadh Omar & 6 Others v. Att’y Gen. of Kenya & 2 Others, Appl. No. 4 of 2011 (Feb. 28, 2012))

“Rule 110(1) applies only to applications for stay of proceedings in respect of which an Appeal has been lodged, and not stay of proceedings pending the determination of an appeal in respect of a different matter”—stays of different matters can be ordered pursuant to the Court’s inherent power under Rule 1(2) of the 2013 Rules (Rule 4 of the 2019 Rules). Sec’y Gen. of EAC v. Rt. Hon. Margaret Zziwa, Appl. No. 12 of 2015, at 16 (Jan. 29, 2016) (referencing Rule 87 of the 2019 Rules).

B. Temporary Injunctions

A temporary injunction serves to “avoid or minimise loss to an applicant/ plaintiff while the substantive case proceeds to final determination. The loss is avoided or minimised by ordering the defendant to stop a controversial activity so that the status quo is preserved while the substantive case proceeds to finality.” Venant Masenge v. Att’y Gen. of Burundi, Appl. No. 5 of 2013, at 7 (June 18, 2014); see Mary Ariviza & Other v. Att’y Gen. of Kenya & Other, Appl. No. 3 of 2010, at 3 (Feb. 23, 2011) (“[T]he purpose of a temporary injunction is to preserve the status quo”) (citing Noor Mohammed Hanmohamed v. Kassamali irji Madhani (1953) 20 EACA 8 and

Garden Cottage Food Limited v. Milk Marketing Board [1984] A.C. 130). Status quo ante is “the state of affairs before a respondent commenced the conduct complained of by the applicant, unless there has been unreasonable delay in filing the application for interim orders, in which case it would be the state of affairs immediately before the application.” British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Appl. No. 13 of 2017, at 23 (Jan. 25, 2018); see also Prof. Paul Kiprono Chepkwony v. Att’y Gen. of Kenya, Appl. No. 17 of 2018, at 18 (Mar. 29, 2019)).

A temporary injunction is a type of interim order, and accordingly is governed by Article 39 of the Treaty and Rule 84 of the 2019 Rules. Alice Nijimbere v. Sec’y Gen. of EAC, Appl. No. 11 of 2015, at 3-4 (Nov. 11, 2015). During the phase when the Court is considering the appropriateness of an injunction, the Court “must of course refrain from making any determination on the merits of the application or any defence to it.” Mary Ariviza & Other v. Att’y Gen. of Kenya & Other, Appl. No. 3 of 2010, at 4 (Feb. 23, 2011); Venant Masenge v. Att’y Gen. of Burundi, Appl. No. 5 of 2013, at 7 (June 18, 2014) (“[A]t this stage, the Court has to examine whether or not it should grant interlocutory orders sought, without delving into the merits of the main issues”); The Democratic Party & Other v. Sec’y Gen. of EAC & Other, Appl. No. 6 of 2011, at 14 (Nov. 30, 2011). Conversely, the Court cannot grant an interim order at the stage of the proceeding where the underlying reference is being decided. Alice Nijimbere v. Sec’y Gen. of EAC, Ref. No. 7 of 2015, at 22 (Mar. 23, 2016).

The Court has discretion to decide whether to grant a temporary injunction, and that discretion must be exercised judiciously. UPRONA Party & 2 Others v. Att’y Gen. of Burundi & Other, Appl. No. 4 of 2014, at 8 (Aug. 15, 2014) (citing Maguna Andu Self Selection Stores Ltd. v. Albert Ouma Akeyo, Kenya Court of Appeal No. NYR. 13 of 2014 (2014)) (“[J]udicial discretion . . . must be [exercised] based on facts or laws that demonstrate that the applicant is deserving of the orders”); The Democratic Party & Other v. Sec’y Gen. of EAC & Other, Appl. No. 6 of 2011, at 10 (Nov. 30, 2011) (citing Sargent v. Patel (1949) 16 EACA 63; Giella v. Cassman Brown Co. Ltd (1973) E.A. 358; Mary Ariviza & Other v. Att’y Gen. of Kenya & Other, Appl. No. 3 of 2010, at 3 (Feb. 23, 2011) (citing Sargent v. Patel (1949) 16 E.A.C.A. 63).

[T]he conditions for the grant of an interlocutory injunction are now well settled in East Africa:-

(a) an applicant must show a prima facie case with a probability of success;

(b) an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages;

(c) If the court is in doubt, it will decide an application on the balance of convenience.

Mary Ariviza & Other v. Att’y Gen. of Kenya & Other, Appl. No. 3 of 2010, at 4 (Feb. 23, 2011) (citing Giella v. Cassman Brown, EACA No. 358 (1873), EA Industries v. Trufoods, EACA No. 420 (1972)); E. Afr. Law Soc’y & 4 Others v. Att’y Gen. of Kenya & 3 Others, Appl. No. 9 of 2007 (July 11, 2007); Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 5 Others, Ref. No. 1 of 2006 (Mar. 30, 2007); Ololosokwan Vill. Council & 3 Others v. Att’y Gen. of Tanz., Appl. No. 15 of 2017 (Jan. 25, 2018) (risk of injustice).

1. Prima Facie Case

On an application for an interlocutory injunction the court must be satisfied that there is a serious question to be tried. The material available to court at the hearing of the application must disclose that the claimant has real prospects for succeeding in his claim for a permanent injunction at the trial.

Mbidde Found. Ltd. & Other v. Sec’y Gen. of EAC & Other, Appl. No. 10 of 2014, at 9 (May 29, 2014) (citing 11 Halsbury’s Laws of England, ¶ 385 (5th ed., Butterworths) (2009)). A serious question to be tried is established where a court is “satisfied that the claim [is] not frivolous or vexatious,” British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Appl. No. 13 of 2017, at 11-12 (Jan. 25, 2018) (citing American Cyanamid v. Ethicon Ltd., AC 396 (1975)), i.e., “where the substantive suit underlying the interlocutory application discloses a cause of action,” FORSC & 4 Others v. Att’y Gen. of Burundi & Other, Appl. No. 16 of 2016, at 7 (Jan. 23, 2018) (citing Siskina (Cargo Owners) v. Distos Compania Naveria SA, AC 210 (1979)).

In establishing this “serious question” standard, the Court removed “the former requirement that the claimant should establish a strong prima facie case for a permanent injunction before the court would grant an interim injunction.” Mbidde Found. Ltd. & Other v. Sec’y Gen. of EAC & Other, Appl. No. 10 of 2014, at 9 (May 29, 2014); British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Appl. No. 13 of 2017, at 12 (Jan. 25, 2018) (“[A] prima facie case and a serious triable issue are not necessarily one and the same thing and, therefore, would not be used interchangeably” as a prima facie case “would necessitate the resolution of ‘conflicts of evidence on affidavit as to facts on which claims of either party may ultimately depend’ (a matter for trial)”) (citing American Cyanamid v. Ethicon Ltd., House of Lords AC 396 (1975)).

The standard has been repeatedly reaffirmed in subsequent cases. See Prof. Paul Kiprono Chepkwony v. Att’y Gen. of Kenya, Appl. No. 17 of 2018, at 12-13 (Mar. 29, 2019); Hassan Basajjabalaba & Other v. Att’y Gen. of Uganda, Appl. No. 9 of 2018, at 16 (Mar. 27, 2019); British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Appl. No. 13 of 2017, at 11-12 (Jan. 25, 2018); FORSC & 4 Others v. Att’y Gen. of Burundi & Other, Appl. No. 16 of 2016, at 5-7 (Jan. 23, 2018); Alice Nijimbere v. EAC Secretariat, Appl. No. 11 of 2015, at 8 (Nov. 24, 2015); Venant Masenge v. Att’y Gen. of Burundi, Appl. No. 5 of 2013, at 8-10 (June 18, 2014).

2. Irreparable Injury

“An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages.” Mary Ariviza & Other v. Att’y Gen. of Kenya & Other, Appl. No. 3 of 2010, at 4 (Feb. 23, 2011) (citing Giella & Cassman Brown Co. Ltd, E.A. Industries v. Trufoods, [1972] E A 420); see also Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Appl. No. 23 of 2014, at 6 (Dec. 16, 2014) (relying on Black’s Law Dictionary, (9th ed.) (2009), to define irreparable injury as “injury that cannot be adequately measured or compensated by money”); Alice Nijimbere v. EAC Secretariat, Appl. No. 11 of 2015, at 10 (Nov. 24, 2015) (citing EA Industries v. Trufoods, EACA No. 420 (1972)).

Applicants bear the burden of proving that they will suffer an irreparable injury unless an injunction is issued. Rwenga Etienne & Other v. Sec’y Gen. of EAC, Appl. No. 8 of 2015, at 12 (Nov. 24, 2015) (finding no irreparable injury when Applicants “have not sufficiently demonstrated the irreparable injury they stood to suffer if this Application was disallowed or that the said injury could not be compensated by damages”); Castro Pius Shirima v. Att’y Gen. of Burundi & 6 Others, Appl. No. 11 of 2016, at 30 (July 6, 2017) (finding no irreparable injury when applicant could not link the event he sought to prevent with the alleged irreparable harm). Averments on irreparable injury must be supported by evidence. FORSC & 4 Others v. Att’y Gen. of Burundi & Other, Appl. No. 16 of 2016, at 11-12 (Jan. 23, 2018). The Court considers the totality of available evidence. The Democratic Party & Other v. Sec’y Gen. of EAC & Other, Appl. No. 6 of 2011, at 13 (Nov. 30, 2011).

The Court has not found irreparable injury where the actions to be enjoined were already taken and could not “be undone in [] interlocutory proceedings.” E. Afr. Law Soc’y & 4 Others v. Att’y Gen. of Kenya & 3 Others, Appl. No. 9 of 2007, at 8 (July 11, 2007) (regarding amendments to the EAC Treaty which had mostly been implemented). Simply “alluding to the injury” previously suffered is also insufficient. Alice Nijimbere v. EAC Secretariat, Appl. No. 11 of 2015, at 11 (Nov. 24, 2015). There is no irreparable injury when an applicant is already the beneficiary of a protective order related to the subject at issue. Hassan Basajjabalaba & Other v. Att’y Gen. of Uganda, Appl. No. 9 of 2018, at 24 (Mar. 27, 2019). And the irreparable injury cannot be based on the fact that the actions are illegal because that is an issue that goes to the substance of the Reference. Prof. Paul Kiprono Chepkwony v. Att’y Gen. of Kenya, Appl. No. 17 of 2018, at 18 (Mar. 29, 2019) (declining to rule on whether a temporary interruption of schooling would be an irreparable injury to students that could not be compensated by an award of damages); FORSC & 4 Others v. Att’y Gen. of Burundi & Other, Appl. No. 16 of 2016, at 11 (Jan. 23, 2018) (irreparable injury to “the activities of international human rights and accountability mechanisms with which [an] Applicant ordinarily work[s] [cannot] be equated” with injury to the applicant themselves).

“[T]he ‘compensatability’ of either party by damages is simply one of the considerations to be weighed by the court . . . and not necessarily a condition for the grant or refusal of an injunction.” Mbidde Found. Ltd. & Other v. Sec’y Gen. of EAC & Other, Appl. No. 10 of 2014, at 8-9 (May 29, 2014).

General damages are given for losses that the law will presume are the natural and probable consequence of a wrong . . . General damages may also mean damages given for a loss that is incapable of precise estimation such as pain and suffering or loss of reputation. In this context special damages are damages given for losses that can be quantified.

British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Appl. No. 13 of 2017, at 17 (Jan. 25, 2018) (citing Oxford Dictionary of Law (7 th ed.) (2009)).

Damages are generally considered inadequate as compensation where:

(a) The defendant is unlikely to be able to pay the sum likely to be awarded at trial.

(b) The wrong is irreparable e.g. loss of the right to vote.

(c) The damage is non-pecuniary e.g. libel, nuisance, trade secrets.

(d) There is no available market.

(e) Damages would be difficult to assess. Examples are loss of goodwill, disruption of business and where the defendant’s conduct has the effect of killing off a business before it is established.

British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Appl. No. 13 of 2017, at 17 (Jan. 25, 2018) (citing Blackstone’s Civil Practice 2005 394 (Blackstone Press) (2005)); FORSC & 4 Others v. Att’y Gen. of Burundi & Other, Appl. No. 16 of 2016, at 10 (Jan. 23, 2018).

A reputational injury may or may not be considered compensable through damages depending on the nature of the injury and the injured party. Mbidde Found. Ltd. & Other v. Sec’y Gen. of EAC & Other, Appl. No. 10 of 2014, at 15 (May 29, 2014) (reputational damage suffered by individual more easily compensated than reputational damage to a “relatively young but pivotal regional institution[] such as the EAC and EALA.”); see also British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Appl. No. 13 of 2017, at 18 (Jan. 25, 2018) (defining reputation as “the qualitative estimation in which a person is generally held.”); Hon. Margaret Zziwa v. Sec’y Gen. of EAC, Appl. No. 23 of 2014, at 6 (Dec. 16, 2014) (“Damage, real or perceived, to reputation may indeed be an irreparable injury but not necessarily an irreparable injustice” because “[d]amage for reputation can certainly be compensated by money”).

3. Balance of Convenience

If the court is in doubt on the question of granting an interlocutory opinion, “it will decide an application on the balance of convenience.” Mary Ariviza & Other v. Att’y Gen. of Kenya & Other, Appl. No. 3 of 2010, at 4 (Feb. 23, 2011) (citing Giella v. Cassman Brown, EACA No. 358 (1873)). That is, “the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at trial.” Alice Nijimbere v. EAC Secretariat, Appl. No. 11 of 2015, at 11 (Nov. 24, 2015) (citing American Cyanamid v. Ethicon Ltd., House of Lords AC 396 (1975)); Prof. Paul Kiprono Chepkwony v. Att’y Gen. of Kenya, Appl. No. 17 of 2018, at 18 (Mar. 29, 2019); British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Appl. No. 13 of 2017, at 21-22 (Jan. 25, 2018).

One consideration is the likely inconvenience of damage that would be suffered by the applicant if the injunction were not granted against the inconvenience or costs to the respondent if the injunction were granted. Rwenga Etienne & Other v. Sec’y Gen. of EAC, Appl. No. 8 of 2015, at 13 (Nov. 24, 2015); British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Appl. No. 13 of 2017, at 22 (Jan. 25, 2018) (weighing not only mere convenience but also “the risk of doing an injustice to one side or the other.”) (citing Cayne v. Glob. Nat. Res., PLC 1 All ER 225 (1984)). The Court has looked to the lack of documentary evidence on the applicant’s side and the more robust record developed on the respondent’s side to rule in favour of the respondent. Alice Nijimbere v. EAC Secretariat, Appl. No. 11 of 2015, at 13 (Nov. 24, 2015).

The issue of balance of convenience does not need to be interrogated where there is no “doubt as to the adequacy of the respective remedies in damages available to either party or to both.” FORSC & 4 Others v. Att’y Gen. of Burundi & Other, Appl. No. 16 of 2016, at 9 (Jan. 23, 2018) (citing American Cyanamid v. Ethicon Ltd., AC 396 (1975)); Rwenga Etienne & Other v. Sec’y Gen. of EAC, Appl. No. 8 of 2015, at 12 (Nov. 24, 2015) (“[A]n important consideration in this balancing exercise would be whether any potential injustice to either party could be adequately compensated by damages.”).

As a consideration, the Court has held that “[w]here other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo.” British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Appl. No. 13 of 2017, at 23 (Jan. 25, 2018) (citing American Cyanamid v. Ethicon Ltd., AC 396 (1975)).

The Court has refused to grant a mandatory injunction where the reference had not yet been heard and the injunction would be against a Partner State organ that had been in place and running for five years. UPRONA Party & 2 Others v. Att’y Gen. of Burundi & Other, Appl. No. 4 of 2014, at 11-12 (Aug. 15, 2014).

F. TREATY INTERPRETATION & APPLICATION

“Treaty interpretation is a process of discovering the proper meaning of treaty terms through various interpreting methods; whereas treaty application is the process of identifying a source of law and applying it.” Att’y Gen. of Tanz. v. Anthony Calist Komu, Appeal No. 2 of 2015, at 26 (Nov. 25, 2016). When the terms of the Treaty are unambiguous, the Court’s “role becomes that of application of the Treaty rather than” interpretation. Att’y Gen. of Tanz. v. Anthony Calist Komu, Appeal No. 2 of 2015, at 25 (Nov. 25, 2016). “[T]reaty provisions are presumed to have meaning and must not be construed as void for uncertainty.” Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 14 Others, Ref. No. 1 of 2006, at 32 (Mar. 30, 2007).

“The [EAC] Treaty, being an international treaty among[ ] sovereign states, is subject to the international law on interpretation of treaties, the main one being ‘The Vienna Convention on the Law of Treaties.’” Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 14 Others, Ref. No. 1 of 2006, at 10 (Mar. 30, 2007). “[T]he Vienna Convention reflect[s] pre- existing customary international law and can be applied as valid canons of interpretation” to the EAC Treaty. Ref. for a Preliminary Ruling under Article 34 of the Treaty Made By the High Court of Uganda in the Proceedings between the Att’y Gen. of Uganda & Tom Kyahurwenda, Case Stated No. 1 of 2014, at 12 (July 31, 2015); E. Afr. Law Soc’y & 4 Others v. Att’y Gen. of Kenya & 3 Others, Ref. No. 3 of 2007, at 23 (Aug. 31, 2008) (“The Vienna Convention sets out international rules of interpretation of treaties.”).

Consistent with the Vienna Convention, where terms are defined in the Treaty, such as those definitions contained in Article 2 of the Treaty, the Court will apply that “express definition.” See Att’y Gen. of Kenya v. Prof. Anyang’ Nyong’o & 10 Others, Appeal No. 1 of 2009, at 5 (Aug. 17, 2010) (applying the definition of “judgment” contained in Article 2 to determine the procedure for challenging an order issued by a single judge).

Where express definitions are not available, Article 31 of the Vienna Convention dictates that the Court should “take into account the . . . ordinary meaning” of the terms of the Treaty and that these terms should be interpreted in good faith and with the benefit of “context and in light of their objectives and purpose.” E. Afr. Ctr. for Trade Policy & Law v. Sec’y Gen. of EAC, Ref. No. 9 of 2012, at 14 (May 9, 2013); The Democratic Party v. Sec’y Gen. of EAC & 4 Others, Ref. No. 2 of 2012, at 16 (Nov. 29, 2013). In doing so, the Court must “take objective of the Treaty as a whole, but without losing sight of the objective or purpose of a particular provision.” E. Afr. Law Soc’y & 4 Others v. Att’y Gen. of Kenya & 3 Others, Ref. No. 3 of 2007, at 24 (Aug. 31, 2008). “[O]nce a decision is consistent with the Treaty objectives of the Treaty there is no room left for rejecting it as such rejection would be tantamount to rejection of a particular Treaty provision.” In the Matter of a Request by the Council of Ministers of the EAC for an Adv. Op., Appl. No. 1 of 2008, at 34 (2009). Although “the Preamble is not binding in law,” it is a “vital tool for the interpretation of the context and purpose of a Treaty provision,” pursuant to Article 31(2) of the Vienna Convention. Ref. for a Preliminary Ruling under Article 34 of the Treaty Made By the High Court of Uganda in the Proceedings between the Att’y Gen. of Uganda & Tom Kyahurwenda, Case Stated No. 1 of 2014, at 27 (July 31, 2015) (ruling that Articles 6, 7, and 8 of the Treaty form “the fundamental and paramount Objectives, Principles and law of the Community” based on the preamble, which asserts the Partner States’ intention to “adhere themselves to the fundamental and operational principles that shall govern”).

Article 32 then provides that where, in interpreting a treaty, the application of Article 31 leaves the meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable, recourse may be had to supplementary means of interpretation including the preparatory work of the treaty and the circumstances of its conclusion.

E. Afr. Law Soc’y & 4 Others v. Att’y Gen. of Kenya & 3 Others, Ref. No. 3 of 2007, at 23-24 (Aug. 31, 2008); Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Ref. No. 10 of 2013, at 6-9 (Nov. 27, 2014) (citing Article 32 of the Treaty) (overturned on other grounds in Union Trade Ctr. Ltd. (UTC) v. Att’y Gen. of Rwanda, Appeal No. 1 of 2015 (Nov. 27, 2014) (acknowledging and reviewing the commentaries of the International Legal Commission Articles on State Responsibility as constituting “preparatory work” to make a determination as to the applications of the Articles)); Att’y Gen. of Kenya v. Prof. Anyang’ Nyong’o & 10 Others, Appl. No. 1 of 2010, at 13 (Mar. 5, 2010) (citing Article 32 of the Treaty); Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 14 Others, Ref. No. 1 of 2006, at 32 (Mar. 30, 2007) (“The parties to a treaty cannot be taken to have intended an absurdity.”); 5 see also E. Afr.

Any reading which would exclude the application of the EAC provisions from the national courts would “lead to a result which is manifestly absurd or unreasonable.” Ref. for a Preliminary Ruling under Article 34 of the Treaty Made by the High Court of Uganda in the Proceedings between the Att’y Gen. of Uganda & Tom Kyahurwenda, Case Stated No. 1 of 2014, at 21 (July 31, 2015).

Law Soc’y & 4 Others v. Att’y Gen. of Kenya & 3 Others, Ref. No. 3 of 2007, at 28-30 (Aug. 31, 2008) (taking note of subsequent practice to guide interpretation of a Treaty provision regarding public participation, pursuant to Article 31 of the Vienna Convention).

The aforementioned rules of interpretation are “part and parcel of the Treaty.” Att’y Gen. of Kenya v. Prof. Anyang’ Nyong’o & 10 Others, Appl. No. 1 of 2010, at 13-16 (Mar. 5, 2010). (EACJ rules of interpretation based on Articles 31 and 32 of the Vienna Convention “are applicable to the East African Court of Justice Rules of Procedure[ ] by virtue of the fact that the said Rules are made by the Court in exercise of the powers conferred on the Court by Article 4 of the Treaty.”).

Examples of cases in which these interpretative principles have been applied include: Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2014, at 14-15 (July 29, 2014) (applying the Vienna Convention to conclude that the Treaty came into force on July 7, 2000); Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW), Appeal No. 3 of 2011, at 11 (Mar. 15, 2012) (applying a “purposive interpretation, construction, application and implementation” to various Treaty provisions consistent with the “essence of the Vienna Convention on the Interpretation of Treaties” to conclude that Partner States have “bound themselves to observe a variety of express undertakings and obligations, concerning the promotion, preservation, conservation and protection of the environment”); Ref. for a Preliminary Ruling under Article 34 of the Treaty Made By the High Court of Uganda in the Proceedings between the Att’y Gen. of Uganda & Tom Kyahurwenda, Case Stated No. 1 of 2014, at 16, 20-21 (July 31, 2015) (examining “intent and purpose of the framers of the Treaty” to conclude that the Court has “exclusive jurisdiction to entertain matters concerning interpretation of the Treaty and annulment of Community Acts.”); Legal Brains Tr. (LBT) Ltd. v. Att’y Gen. of Uganda, Ref. No. 10 of 2011, at 26 (Mar. 30, 2012) (considering the Vienna Convention but finding “nothing calls for interpretation since . . . a plain-language interpretation of the Article is enough” and concluding that “all the Articles are as explicit as can be on the number of years for holding an office in the Community.”); Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 14 Others, Ref. No. 1 of 2006, at 26, 29, 34 (Mar. 30, 2007) (considering the ordinary meaning of Article 50 of the Treaty “in the context of the Treaty as a whole,” analysing how its text departed from analogous provisions of the predecessor 1967 Treaty for East African Co- operation, and to conclude that Partner State national assemblies had “discretionary power to determine the procedure” for electing their respective EALA members).

G. PROOF

“It is a well recognized rule of procedure that s/he who asserts must prove their case.” Rwenga Etienne & Other v. Sec’y Gen. of EAC, Ref. No. 7 of 2015, at 20 (Mar. 23, 2016) (“Courts require the party that raises a claim or advances a particular contention to establish the elements of fact and of law on which the decision in its favour might be given. Ultimately, it is the litigant that seeks to establish a fact who bears the burden of proving it.”).

How does the Court hearing proceed?

One party, usually the claimant, first begins [Rule 72]. The claimant states their case and produces their evidence ─ including calling their witness(es) to give evidence. The respondent questions the claimant (in cross-examination). If there is anything that is not clear, the claimant may re-examine the witness further; and/or comment on any new points raised [Rule 73]. As the witnesses give evidence, the judge(s) take down notes. Simultaneously, a full audio recording of the proceedings is made [Rule 75]. If the case is not concluded for each hearing, a new date is set when the hearing will be continued. That process is known as adjournment.

The Court will always fix a specific date when the case will carry on. If any date is fixed at a later stage, then the Court will notify all the parties of the new date. What happens if the applicant or the respondent or both fail to attend the hearing?

(a) If neither party attends the hearing, the Court may dismiss the claim, reference or application or make such other order as it thinks fit [Rule 71(1)];

(b) If the claimant or applicant does not appear, but the respondent appears, the claim, reference or application may be dismissed and any counterclaim may proceed, unless the Court sees fit to adjourn the hearing. However, the Court may afterwards, upon application by the claimant or applicant, restore the claim, reference or the application for hearing and may re-hear the counterclaim, if satisfied that the claimant or applicant was prevented by sufficient cause from appearing [Rule 71(2)];

(c) If the respondent does not appear, but the claimant or applicant appears, the hearing may proceed without the respondent; and any counterclaim may be dismissed unless the Court sees fit to adjourn the hearing. However, the Court may afterwards, upon the application of the respondent, rehear the claim, reference or application or restore the counter-claim for hearing if satisfied that the respondent was prevented by sufficient cause from appearing [Rule 71(3)];

(d) Any ex parte judgment or order (i.e. one delivered when only one party is present) shall be set aside when the Court orders that a claim,reference, counterclaim or application be restored for hearing or be reheard [Rule 71(4)];

(e) Where a claim, reference, counterclaim or application is dismissed and an application for its restoration is disallowed, no fresh claim, counterclaim or application may be brought upon the same cause of action [Rule 71(5)];

(f) An application for restoration shall be made within 30 days of the decision of the Court or when the applicant became aware of the decision [Rule 71(6)]. How does the Court fix the date(s) for oral proceedings? [Rule 65]

Prior to the opening of oral proceedings, the Court meets in chambers for:

• Fixing the hearing date(s) and place for the oral proceedings to take place, if possible, within a period not exceeding 6 months from the close of pleadings [Rule 65(1)].

• When fixing the date(s) and place for the opening of the oral proceedings or postponing the opening or continuance of such proceedings, the Court takes into account:

The need to avoid unnecessary delay;

Any special circumstances, including the urgency of the case or other cases on the list of cases;

The views expressed by the parties and the convenience of such place to the parties, their advocates and witnesses; and

The need to administer substantive justice without undue regard to technicalities [Rule 65(2)].

After the date for opening oral proceedings is fixed, the Registrar issues and serves on the parties a notice (in standard Form 6 of the Second Schedule to the 2019 Rules) stating the date and place of the hearing [Rule 65(5) & (6)].

Witnesses (1) Summoning witnesses [Rule 66]

Each party has the responsibility to bring its own witnesses. However, a party may obtain the Court’s summons to any person whose attendance is required either to give evidence or to produce document(s) [Rule 66(1)]

.

The witness summons (issued in standard Form 7 of the Second Schedule to the 2019 Rules):

• Specifies the time and place of attendance;

• States whether attendance is required for giving evidence, or for producing document(s), or for both; and

• Describes with reasonable accuracy the document(s) required [Rule 66(2)].

Where a summoned witness fails to appear or refuses to give evidence or to produce document(s), the Court may in its discretion impose upon the witness a pecuniary penalty not exceeding USD 2000 [Rule 66(4)]. Such penalty is enforceable as an order of the Court in accordance with Article 44 of the Treaty [Rule 66(5)], including enforcement through attachment and sale of the movable property of the defaulting witness [Rule 67(5)].

(2) Expenses of witnesses [Rule 67]

The party calling a witness is responsible for the witness’s expenses [Rule 67(1)].

The party applying for witness summons deposits into Court a sum of money sufficient to defray potential travel and other expenses of the witness summoned [Rule 67(2)]. The Registrar may require further deposits to meet further expenses [Rule 67(4)].

Expert witness(es) summoned by the Court are allowed reasonable remuneration for the time spent in giving evidence and the necessary subsistence allowance [Rule 67(3)].

(3) Commission to examine witnesses

The Court may issue a commission or letter of request asking for the examination on interrogatories or otherwise of any person:

Resident beyond the local limits of the Court’s jurisdiction;

Who is about to leave such limits;

Who, being a civil or military officer of a Partner State or a servant of the Community, cannot attend the Court without detriment to the public service

These commissions or letters are issued only:

(1) Where the evidence, from a person resident outside the Court’s jurisdiction, is “necessary”;

(2) If the Court so orders, and only after payment into Court of the expenses of the Commission by the party requesting or benefiting from the commission [Rule 68(3) & (5)].

The Commission together with the evidence taken under it are returned to the Court to form part of the record of the proceedings [Rule 68(4)].

Statement and production of evidence

At the hearing, the party having the right to begin states its case and produces the evidence that supports the issues which it is required to prove. The moving party has the “right to begin” unless the responding party admits the facts or contends that the moving party is not entitled to relief, in which case the responding party has the right to begin. The opposite party then states its case and produces its supporting evidence; and may then address the Court generally on the case. The party beginning may reply.

If the other party produces no evidence, the beginning party may address the Court first, followed by the reply of the second party; and the comments of the beginning party on any new points raised in the second party’s reply [Rule 73(2)]. Alternatively, the parties may present their legal submissions (i.e. arguments) in writing [Rule 73(3)].

Oath or affirmation

Before giving evidence, a witness takes an oath or affirmation (using standard Form 8 of the Second Schedule to the 2019 Rules), [Rule 74]. A witness, who tells lies under oath or affirmation, commits the offence of perjury. Witnesses must tell the truth by giving a true account of events in their testimony.

Taking and recording of evidence

Evidence given in Court is not in the form of question and answer but in a narrative by the official court recorder; signed by the Presiding Judge; and kept and maintained by the Registrar [Rule 75(1)].

The Court may take down any particular question and answer or any objection to any question if there appears to be any special reason for doing so [Rule 75(2)].

“[T]he court will formally require the Party putting forward a claim or particular contention to establish the elements of fact and of law on which the decision in its favour is given.” British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Ref. No. 7 of 2017, at 27 (Mar. 26, 2019) (quoting Henry Kyarimpa v. Att’y Gen. of Uganda, Appeal No. 6 of 2014, at 31 (Feb. 19, 2016)). More specifically,

[T]he complaining party should establish a prima facie case of inconsistency with a cited treaty or agreement, before the burden shifts to the opposite party to demonstrate its consistency. A prima facie case is established when it is “supported by sufficient evidence for it to be taken as proved should there be no adequate evidence to the contrary.

British American Tobacco (U) Ltd. v. Att’y Gen. of Uganda, Ref. No. 7 of 2017, at 28–29 (Mar. 26, 2019) (citing Trebilcock and Howse, The Regulation of Reference International Trade, p. 68 (2d ed. Routledge) (1999)); prima facie, Oxford Law Dictionary. (7th Ed.) (2009); Rule 73(1) of the 2019 Rules (“At the hearing the party having the right to begin shall state its case and produce evidence in support of the issues which it is bound to prove. The other party shall then state its case and produce evidence, and may then address the Court generally on the case. The party beginning may reply.”).

“In other words, the burden of proof is on the one who would fail if no proof was offered.” Henry Kyarimpa v. Att’y Gen. of Uganda, Appeal No. 6 of 2014, at 31 (Feb. 19, 2016); Att’y Gen. of Kenya v. Hon. Anyang’ Nyong’o & 10 Others, Appl. No. 4 of 2009, at 11 (Oct. 16, 2009) “[T]he duty of placing the necessary evidence before the Court to enable it exercise its discretion is squarely on the applicant” (citing BogetutuFarmers vs Mohamed Hassan Yonis H.C.C.C No. 154 of 1992)). The Trial Court has no obligation to investigate into factual matters by gathering its own evidence. Alice Nijimbere v. Sec’y Gen. of EAC, Appeal No. 1 of 2016, at 28-30 (Dec. 2, 2016) (rejecting the applicant’s claim that the Trial Court failed to conduct “an investigation at the Hospital” to verify that her child was indeed being treated there).

I. PROOF OF LAW

Does the EACJ have the authority to hear human rights cases?

I. Statements of Claim (Article 31)

How is a claim initiated and what are the contents of a claim presented before the EACJ?

II. Amendment of Pleadings

III. Striking-out a Pleading

B. Preh3minary Objections

C. Scheduh3ng Conference

D. Amicus Curiae & Interveners

I. Amicus Curiae

II. Intervention

E. Apph3cations

I. Notice of Motion

II. Ex Parte Apph3cations

III. Interim Orders

F. Treaty Interpretation & Apph3cation

G. Proof

How does the Court hearing proceed?

What happens if the apph3cant or the respondent or both fail to attend the hearing?

I. Proof of Law

II. Proof of Fact

H. Orders & Judgments

What are the form and content of the Court’s judgments, ruh3ngs, decisions, decrees and orders?

How does the Court execute or enforce its judgments, orders and decisions?

I. Permanent Injunctions

II. Declaratory Judgments

III. Damages

What is the process for instituting or commencing an appeal?

What can I do as a respondent to an appeal?

Are there any impermissible h3mits to appeals or cross-appeals?

Can I withdraw my appeal or cross-appeal once filed?

What happens to my case if I should die before termination of the appeal?

Can the Court be requested to provide an advisory opinion?

J. Alternative Dispute Resolution

Can the EACJ help settle a dispute without going to trial?

K. Contempt of Court & Bad Faith

L. Judicial Discretion Regarding Procedural Requirements

M. Judicial Impartiah3ty

N. Costs

O. Fees & Costs

Court Fees and Costs

I. Instruction Fee

II. Getting Up Fee

III. Perusal Fee

IV. Service

V. Foh3os

VI. Multiple Applicants

VIII. Reference versus Apph3cation

IX. Power of the Taxing Officer

X. Objections

XI. Evidentiary Support for Costs

P. EAC Treaty

I. Implementation of the Treaty

II. Amendment of the Treaty

Q. EAC Protocols

I. Common Market Protocol

II. Customs Union Protocol

R. Membership in the Community

S. Other EAC Organs

I. Summit

II. Secretariat

III. The Council of Ministers (the “Council”)

IV. The East African Legislative Assembly (the “EALA”)

V. The Sectoral Committees

VI. The Co-ordinating Committee

A. Annex A - EAC Treaty

B. Annex B - EACJ 2019 Rules of Procedure

C. Annex C - Amended Rules of Procedure Comparison Chart

D. Annex D - Third Schedule: Taxation of Costs

E. Annex E - Seventh Schedule, Form G: Certificate of Taxation Costs

F. Annex F - Eighth Schedule: Taxation of Costs

G. Annex G - Landmark Cases

Below is a list of the EACJ’s landmark decisions:
  • Prof. Peter Anyang’ Nyong’o & 10 Others v. Att’y Gen. of Kenya & 2 Others
  • Alcon Int’l Ltd. v. Standard Chartered Bank of Uganda & 2 Others
  • Ref. for a Preliminary Ruling under Article 34 of the Treaty Made by the High Court of Uganda in the Proceedings between the Att’y Gen. of Uganda & Tom Kyahurwenda
  • Henry Kyarimpa v. Att’y Gen. of Uganda
  • The Democratic Party v. Sec’y Gen. of EAC & 4 Others
  • James Katabazi & 21 Others v. Sec’y Gen. of EAC & Other
  • Indep. Med. Unit vs. Att’y Gen. of Kenya & 4 Others
  • Samuel Mukira Mohochi v. Att’y Gen. of Uganda
  • Plaxeda Rugumba v. Att’y Gen. of EAC & Other
  • Att’y Gen. of Tanz. v. Afr. Network for Animal Welfare (ANAW)
  • E. Afr. Law Soc’y & 4 Others v. Att’y Gen. of Kenya & 3 Others
  • Christopher Mtikila v. Att’y Gen. of Tanz. & Other
  • Hon. Margaret Zziwa v. Sec’y Gen. of EAC
  • Att’y Gen. of Burundi v. Sec’y Gen. of the EAC
  • Godfrey Magezi v. Att’y Gen. of Uganda

H. Annex H - Guideh3nes on Preh3minary Ruh3ngs

General

The Preliminary Ruling system is a fundamental mechanism of East African Community Law aimed at enabling National Courts to ensure uniform interpretation and application of that Law in all the Partner States.

The East African Court of Justice has jurisdiction to give Preliminary Rulings on the interpretation of East African Community Law and on the validity of the regulations, directives, decisions or actions of the Community.

That general jurisdiction is conferred on it by Article 34 of the Treaty for the Establishment of East African Community (the Treaty).

While Article 34 of the Treaty confers on the East African Court of Justice a general jurisdiction, it goes further to direct National Courts or tribunals (National Courts) to refer a matter to the Court if it considers that a Ruling on the question concerning the interpretation or application of the Provision of the Treaty is necessary to enable it to give a judgment.

The Preliminary Ruling Procedure being based on cooperation between the East African Court of Justice and National Courts, it may be helpful, in order to ensure that that cooperation is effective, to provide the National Courts with the following information.

This practical information is intended to provide guidance to National Courts as to whether it is appropriate to make a reference for a preliminary ruling and, should they proceed, to help them formulate and submit questions to the Court.

The Role of the East African Court of Justice in the Preliminary Ruling Procedure Under the preliminary Ruling Procedure, the Court’s role is to give an interpretation of East African Community Law or to Rule on its validity, not to apply that Law to the factual situation underlying the main proceedings, which is the task of the National Court. It is not for the Court either to decide issues of fact raised in the main Proceedings or to resolve difference of opinion on the interpretation or application of Rules of National Law. Guidelines on a Reference for Preliminary Ruling In ruling on the interpretation or validity of East African Community Law, the Court makes every effort to give a reply which will be of assistance in resolving the dispute, but it is for the referring Court to draw the appropriate conclusions from that reply. The Decision to Submit a Question to the Court/The Originator of the Question

Under Article 34 of the Treaty, any Court of a Partner State, in so far as it is called upon to give a Ruling in Proceedings intended to arrive at a decision of a judicial nature, may as a rule refer a question to the East African Court of Justice for a Preliminary Ruling. It is for the National Court alone to decide whether to refer a question to the East African Court of Justice for a Preliminary Ruling. This is so irrespective of whether or not the parties to the main Proceedings have requested it to do so.

Reference on Interpretation

Any Court may refer a question to the East African Court of Justice on the interpretation of a rule of East African Community Law if it considers it necessary to do so in order to resolve a dispute brought before it.

It is for the National Court to explain why the interpretation sought is necessary to enable it to give judgment

Reference on Determination of Validity

Although National Courts may reject pleas raised before them challenging the validity of regulations, directives, decisions or actions of the Community, the East African Court of Justice has exclusive jurisdiction to declare such as regulations, directives, decisions or actions invalid.

All National Courts must therefore refer a question to the Court when they have doubts about the validity of such regulations, directives, decisions or actions, stating the reasons for which they consider that that act may be invalid.

However, if a National Court has serious doubts about the validity of a regulation, directive, decision or action of the Community on which a national measure is based, it may exceptionally suspend application of that measure temporarily or grant other interim relief with respect to it. It must then refer.

The Stage at Which to Submit a Question for a Preliminary Ruling

A National Court or tribunal may refer a question to the Court for a Preliminary Ruling as soon as it finds that a ruling on the point or points of interpretation or validity is necessary to enable it to give judgment; it is the National Court which is in the best position to decide at what stage of the proceedings such a question should be referred.

It is, however, desirable that a decision to seek a Preliminary Ruling should be taken when the National Proceedings have reached a stage at which the National Court is able to define the factual and legal context of the question, so that the East African Court of Justice has available to it all the information necessary to check, where appropriate, that East African Community Law applies to the main proceedings. It may also be in the interests of justice to refer a question for a Preliminary Ruling only after both sides have been heard.

The Form of the Reference for a Preliminary Ruling

The decision by which a National Court or tribunal refers a question to the East African Court of Justice for a Preliminary Ruling may be in any form allowed by National Law as regards procedural steps. It must however be borne in mind that it is that document which serves as the basis of the proceedings before the Court and that it must therefore contain such information as will enable the latter to give a reply which is of assistance to the National Court. Moreover, it is only the actual Reference for a Preliminary Ruling which is notified to the interested persons entitled to submit observations to the Court, in particular the Partner States and Organs and Institutions of the Community. The Reference should be in English language.

The Reference should be drafted simply, clearly and precisely, avoiding superfluous detail.

A maximum of about 10 pages is generally sufficient to set out in a proper manner the context of a Reference for a Preliminary Ruling. The order for Reference must be succinct but sufficiently complete and must contain all the relevant information to give the Court and the interested persons entitled to submit observations a clear understanding of the factual and legal context of the main proceedings. In particular, the order for reference must:

• Include a brief account of the subject-matter of the dispute and the relevant findings of fact, or, at least, set out the factual situation on which the question referred is based;

Guidelines on a Reference for Preliminary Ruling set out the tenor of any applicable National provisions and identify, where necessary, the relevant National Case-Law, giving in each case precise Reference (for example, a page of an official journal or specific law report, with any internet reference);

  • Identify the East African Community Law Provisions relevant to the case as accurately as possible;
  • Explain the reasons which prompted the National Court to raise the question of the interpretation or validity of the East African Community Law Provisions, and the relationship between those provisions and the National Provisions applicable to the main proceedings;
  • Include, if need be, a summary of the main relevant arguments of the parties to the main proceedings;
  • In order to make it easier to read and refer to the document, it is helpful if the different points or paragraphs of the order for reference are numbered.

Finally, the referring Court may, if it considers itself able, briefly state its view on the answer to be given to the questions referred for a Preliminary Ruling.

The question or questions themselves should appear in a separate and clearly identified section of the order for Reference, generally at the beginning or the end. It must be possible to understand them without referring to the statement of the grounds for the Reference, which will however provide the necessary background for a proper assessment.

The Effects of the Reference for a Preliminary Ruling on the National Proceedings

A Reference for Preliminary Ruling calls for the National Proceedings to be stayed until the East African Court of Justice has given its Ruling.

However, the National Court may still order protective measures, particularly in connection with a Reference on determination of validity (see point 15 above).

Costs and Legal Aid

Preliminary Ruling Proceedings before the East African Court of Justice are free of charge and the Court does not rule on the Costs of the parties to the main proceedings; it is for the National Court to rule on those Costs.

Guidelines on a Reference for Preliminary Ruling

If a party has insufficient means and where it is possible under National Rules, the National Court may grant that party legal aid to cover the costs, including those of lawyers’ fees, which the party incurs before the Court.

Communication between the National Court and the East African Court of Justice

The order for Reference and the relevant documents (including, where applicable, the case file or a copy of the case file) are to be sent by the National Court directly to the East African Court of Justice, by registered post (addressed to the Registrar of the East African Court of Justice or its sub-registries in the Partner States).

The Court Registry will stay in contact with the National Court until a Ruling is given, and will send it copies of the procedural documents.

The East African Court of Justice will send its Ruling to the National Court. It would welcome information from the National Court on the action taken upon its Ruling in the National Proceedings and, where appropriate, a copy of the National Court’s final decision.

I. Annex I - Legend of Abbreviations & Glossary

GLOSSARY

In this Users Guide the following words and expressions have the meanings assigned to them respectively in the EAC Treaty, and unless the context otherwise requires:

“Advocate” [allowed to represent a party before the EACJ] means an advocate who is entitled to appear before a superior court of any of the Partner States

“Affidavit” means a sworn (or affirmed) statement of evidence, signed by the person giving it

“Appellate Division” means the Appellate Division of the EACJ established under Article 23 of the Treaty

“Costs” means the expenses incurred in presenting a case – including lawyers’ fees, travels, accommodation expenses, telephone, photocopying, etc.

“Counsel to the Community” means the Counsel to the Community provided for under Article 69 of the Treaty

“Court” means the East African Court of Justice and includes a single Judge exercising any power vested in that Judge sitting alone

“Claim” means the aggrieved Party’s Statement of his case

“Decree” means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to any of the matters in controversy in the suit and may be either preliminary or final

“Defence” means the Respondent’s Statement in defence of the Claim against him

“Deputy Principal Judge” means the Deputy Principal Judge of the Court [she/he is the Deputy Head of the First Instance Division]

“Ex-Parte” means hearing or determining a case or any part of it with only one of the parties present

“First Instance Division” means the First Instance Division of the Court provided for under Article 23 of the Treaty

“Full Court” or “Full Bench” means the full panel of judges, which does not necessarily include all judges sitting en banc

“Gazette” means the East African Community Gazette

“In Camera” means proceedings of the Court held in private (i.e. closed to the public)

“Intervener” means a Partner State, the Secretary General or a resident of a Partner State not a Party to a case before the Court, that is permitted to intervene in a case in accordance with Section VIII] of the Court’s Rules

“Judge” means a Judge of the Court serving on the First Instance Division or the Appellate Division

Judge Mediator” means a Judge or/panel of Judges of the Court mediating a case before the Court

“Jurisdiction” means the mandate or authority of the Court to hear and deliver a case brought before it

“Lodge” means to file a case or documents in the Registry of the Court

“National Court” means a court of competent jurisdiction in a Partner State

“Official Holiday” includes the national days of the Partner States as well as New Year’s Day, Idd el

“Official Holiday” includes the national days of the Partner States as well as New Year’s Day, Idd el Fitr, Idd el Haj, Good Friday, Easter Monday, Labour Day, Christmas and Boxing Day

“Pleading” includes any document lodged/filed by or on behalf of a party relating to a matter or a case before the Court

“President” means the President of the Court [the Head of the whole Court]

“Principal Judge” means Principal Judge of the Court [Head of the First Instance Division]

“Registrar” means the Registrar of the Court

“Registry” means the Court registry (including the Courts’ sub registries [located in the Partner States]

“Rules” means the Court’s Rules of Procedure 2019 [in force as of 1st February, 2020, as may be amended from time to time]

“Representative” means a person that is empowered to stand or act for another

“Serve” means to formally avail a document of one party (by handing it over or sending it) to the other Party or parties involved in a case before the Court

“Treaty” means the Treaty for the Establishment of the East African Community

“Vice-President” means the Vice-President of the Court [she/he is the Deputy Head of the whole Court].

Court Manual: A Practical Guide to the Law and Practice of the East African Court of Justice

TABLE OF CONTENT

  1. Preface
  2. Introduction
  3. 1. Who is this practical guide for and how does it assist litigants and judges?
  4. 2. What is the East African Community?
  5. 3. What is the Treaty for the Establishment of the East African Community?
  6. 4. What are the basic objectives and fundamental principles of the East African Community?
  7. 5. What are the protocols to the Treaty?
  8. Background to the Court
  9. 6. What is the East African Court of Justice (EACJ)?
  10. 7. Why is the East African Court of Justice needed?
  11. 8. What are the main objectives of the Court for achieving its mission?
  12. 9. What are the composition, structure and location of the Court?
  13. 10. What does the First Instance Division of the Court do?
  14. 11. What does the Appellate Division of the Court do?
  15. 12. What is the responsibility of the Registrar
  16. 13. What are the sub-registries and where are they located?
  17. Framework for Accessing the Court
  18. 14. Do the parties have to pay in order for the Court to fix a trial date?
  19. 15. How should one address the Court’s officials?
  20. 16. How should one address the people who will be present at the hearing?
  21. 17. What are the different court proceedings and how is the oral proceeding conducted?
  22. A. Appeal
  23. 18. What is the quorum in the Appellate Division?
  24. 19. How are appeals heard?
  25. 20. How can an appellant respond to a cross-appeal?
  26. 21. What happens after the appeal is properly initiated?
  27. 22. When is an appeal scheduled for hearing?
  28. 23. Are there any arguments that are disallowed at the hearing of an appeal?
  29. 24. How is a judgment on appeal delivered?
  30. B. Complaints about EACJ Services
  31. 25. Presentation of complaints concerning EACJ Services
  32. 26. Is the EACJ open to hear my complaints and views?
  33. 27. What are the roles & duties of Advocates before the Court & with their clients?
  34. C. Court Holidays
  35. 28. What are the Court’s holidays?
  36. Applicable Law and Interpretive Guides
  37. How do litigants file court documents?
  38. How does a case before the Court begin, and who is involved in the case?
  39. What is the procedure when a suit is brought against someone?
  40. A. Pleadings
  41. How should a respondent/defendant respond in their defence?
  42. What happens if a respondent fails to file a response/defence?
  43. What happens after a case is presented before the Court?
  44. What happens if the respondent/defendant cannot be found?
  45. Who may appear or be represented before the Court?
  46. Who can access the Court to file a reference?
  47. Over what subject matters does the Court have legal authority to administer justice (i.e. what is the scope of the Court’s jurisdiction)?
  48. Does the EACJ have the authority to hear human rights cases?
  49. I. Statements of Claim (Article 31)
  50. How is a claim initiated and what are the contents of a claim presented before the EACJ?
  51. II. Amendment of Pleadings
  52. III. Striking-out a Pleading
  53. B. Preliminary Objections
  54. C. Scheduling Conference
  55. D. Amicus Curiae & Interveners
  56. I. Amicus Curiae
  57. II. Intervention
  58. E. Applications
  59. I. Notice of Motion
  60. II. Ex Parte Applications
  61. III. Interim Orders
  62. F. Treaty Interpretation & Application
  63. G. Proof
  64. How does the Court hearing proceed?
  65. What happens if the applicant or the respondent or both fail to attend the hearing?
  66. I. Proof of Law
  67. II. Proof of Fact
  68. H. Orders & Judgments
  69. What are the form and content of the Court’s judgments, rulings, decisions, decrees and orders?
  70. How does the Court execute or enforce its judgments, orders and decisions?
  71. I. Permanent Injunctions
  72. II. Declaratory Judgments
  73. III. Damages
  74. What is the process for instituting or commencing an appeal?
  75. What can I do as a respondent to an appeal?
  76. Are there any impermissible limits to appeals or cross-appeals?
  77. Can I withdraw my appeal or cross-appeal once filed?
  78. What happens to my case if I should die before termination of the appeal?
  79. Can the Court be requested to provide an advisory opinion?
  80. J. Alternative Dispute Resolution
  81. Can the EACJ help settle a dispute without going to trial?
  82. K. Contempt of Court & Bad Faith
  83. L. Judicial Discretion Regarding Procedural Requirements
  84. M. Judicial Impartiality
  85. N. Costs
  86. O. Fees & Costs
  87. Court Fees and Costs
  88. I. Instruction Fee
  89. II. Getting Up Fee
  90. III. Perusal Fee
  91. IV. Service
  92. V. Folios
  93. VI. Multiple Applicants
  94. VII. Attorney General Entitlement to Instruction Fees and Related Fees
  95. VIII. Reference versus Application
  96. IX. Power of the Taxing Officer
  97. X. Objections
  98. XI. Evidentiary Support for Costs
  99. P. EAC Treaty
  100. I. Implementation of the Treaty
  101. II. Amendment of the Treaty
  102. Q. EAC Protocols
  103. I. Common Market Protocol
  104. II. Customs Union Protocol
  105. R. Membership in the Community
  106. S. Other EAC Organs
  107. I. Summit
  108. II. Secretariat
  109. III. The Council of Ministers (the “Council”)
  110. IV. The East African Legislative Assembly (the “EALA”)
  111. V. The Sectoral Committees
  112. VI. The Co-ordinating Committee
  113. Annex
  114. A. Annex A – EAC Treaty
  115. B. Annex B – EACJ 2019 Rules of Procedure
  116. C. Annex C – Amended Rules of Procedure Comparison Chart
  117. D. Annex D – Third Schedule: Taxation of Costs
  118. E. Annex E – Seventh Schedule, Form G: Certificate of Taxation Costs
  119. F. Annex F – Eighth Schedule: Taxation of Costs
  120. G. Annex G – Landmark Cases
  121. H. Annex H – Guidelines on Preliminary Rulings
  122. I. Annex I – Legend of Abbreviations & Glossary