Arusha, 22 August 2013: The First Instance Division heard a case against the Secretary General of the East African Community and four Partner States, the Republics of Burundi, Kenya, Rwanda and Uganda; filed by the Democratic Party (DP) of the Republic of Uganda for alleged failure or refusal and delay to make respective declarations to accept the competence of the African Court on Human and People’s Rights (ACHPR). The DP argued that the inaction of the named Partner States was an Infringement of the Treaty for Establishment of the EAC particularly Articles 6(d) and 7(2) among others.
The Applicant represented by Hon. Fred Mukasa Mbidde, Member of the East African Legislative Assembly (EALA) and Mr. Justin Semuyaba (Advocate) submitted that only the United Republic of Tanzania had deposited the necessary declaration since the ratification of the ACHPR. However, the Applicant later opted to discontinue the Republic of Rwanda dispute because it submitted the declaration when the case had already been filed in this Court.
The Applicant further contended that named Partner States have delayed to deposit the necessary declarations for ten (10) years since the ratification of the Charter and that since access to Justice is essential to the integration process, the continued delay was hampering access to the African Court by litigants from those Countries. Therefore alleges that the Secretary General’s failure to carry out his supervisory role over all the Partner States of the East African Community contravenes the Treaty.
The Secretary General’s Representative, Dr. Anthony Kafumbe, submitted that the Court does not have the jurisdiction to interpret the ACHPR and instead it is restricted to the interpretation and application of the Treaty under Article 27 only. He also added that the delay of the deposition of the necessary declarations by the Partner States is not a breach because the Protocol of the ACHPR does not have any time line and that the Treaty does not indicate the supervisory role of the SG over the Partner States in implementing the deposition of the declarations.
Uganda and Kenya’s Advocates also associated themselves with the SG’s submissions , and argued that deposition of the declaration is a process not an event; that there is good will among these Partner States and therefore they should be given time to pursue this action.
TKenya’s representative argued that there is no evidence that it had failed to implement the ACHPR Provisions and that it is the discretion of a State to deposit a declaration at its own time. He said that it’s only the EAC Summit of the Heads of State that can address the implementation and that the rights of Kenyan citizens are protected by Kenya’s Constitution and therefore there was no urgency in the matter.
The Representative for Rwanda on his part argued that although the Applicant had discontinued the case against the Republic of Rwanda, it was not entitled to costs because Rwanda had fulfilled its obligation to deposit the declarations. The Republic of Burundi was not represented
The Court will deliver the judgement on notice.
Note to Editors:
Treaty for the Establishment of the East African Community
- Article 7(2) The Partner States undertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social justice and the maintenance of universally accepted standards of human rights.
- Article 6(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 protect ion of human and peoples rights in accordance with the provisions of the African Charter on Human and Peoples’ Rights
- Article 27(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.
- Article 27(2) The Court shall have such other original, appellate, human right s 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.
About the EACJ:
The East African Court of Justice (EACJ or ‘the Court’), is one of the organs of the East African Community established under Article 9 of the Treaty for the Establishment of the East African Community. Established in November 2001, the Court’s major responsibility is to ensure the adherence to law in the interpretation and application of and compliance with the EAC Treaty.
Arusha is the temporary seat of the Court until the Summit determines its permanent seat. The High Courts of the Partner States serve as sub-registries.
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Owora Richard Othieno, Head of Department;
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East African Court of Justice