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Acuil v Attorney General of the Republic of South Sedan and Another (Reference No.4 of 2018)

East African Court of Justice · [2021] EACJ 8 · 2021 Reference Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to the East African Court of Justice under Articles 6(d), 7(2), 27, 29(1), 30(1), (2), 38, 67(3)(d) and 71(1)(d) of the Treaty for the Establishment of the East African Community
Decision
Reference dismissed for lack of jurisdiction and on grounds that it was time-barred

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice dismissed the Reference on jurisdictional grounds. The Court held that it lacked jurisdiction ratione materiae because the impugned acts occurred in 2014, before South Sudan joined the East African Community in April 2016, and the Treaty does not apply retrospectively. The Court further held that the Reference was time-barred under Article 30(2) of the Treaty, having been filed more than two months after the complained acts arose, and the Court has no power to extend the limitation period or recognise continuing violations.

Outcome

Reference dismissed for lack of jurisdiction and on grounds that it was time-barred

Facts

The Applicant, a South Sudanese advocate, was unable to renew his practicing certificate after it expired in April 2017 due to the alleged absence of a functioning Bar Association and Bar Council. Elections for the South Sudan Bar Association Executive Committee due in 2014 were contested in court. Following civil unrest, candidates allegedly reached a Compromise Agreement in December 2016 to form a transitional Bar Association, under which the Applicant was declared Vice President. The Applicant alleged that the Respondent State established a parallel Bar Association and assigned government representatives to its Bar Council rather than to the transitional Bar Association established by the Compromise Agreement, thereby denying him the opportunity to function as Vice President and to renew his practicing certificate. The Applicant filed this Reference alleging violations of the Treaty principles of good governance and rule of law.

Issues

  1. Whether the Court has jurisdiction to entertain this Reference.
  2. Whether the Reference is time barred.
  3. Whether a parallel Bar was established by the Respondent and if so whether that action contravenes Articles 6(d) and 7(2) of the Treaty.
  4. Whether the Applicant's right to renew his Practicing Certificate and be elected as Vice President of the Bar Association was infringed upon and therefore contravening Articles 6(d) and 7(2) of the Treaty.
  5. Whether the parties are entitled to the remedies sought.

Orders

  • Reference dismissed.
  • Costs awarded to the Respondent.

Rules and key headnotes

Treaty Interpretation — Non-Retroactive Application — Temporal Jurisdiction
A treaty cannot be applied retrospectively unless a different intention appears from the treaty or is otherwise established. In the absence of contrary intention, a treaty cannot apply to acts or facts which took place or situations which ceased to exist before the date of its entry into force with respect to a party.
Jurisdiction — Ratione Materiae — Partner State Membership
The East African Court of Justice lacks jurisdiction ratione materiae over acts of a state that occurred before that state became a Partner State to the East African Community, as the obligations imposed by the Treaty apply to Partner States only after obtaining membership of the Community.
Jurisdiction — Ratione Temporis — Time Limitation under Article 30(2)
Proceedings under Article 30 of the Treaty for the Establishment of the East African Community must be instituted within two months of the enactment, publication, directive, decision or action complained of. The Court has no power to extend, condone, waive, or modify the prescribed time limit for any reason, including for alleged continued violations.
Jurisdiction — Time Limitation — Computation of Time
For purposes of computing the two-month limitation period under Article 30(2) of the Treaty, time starts to run from the day the act complained of was first effected, not the day the act ends.
Jurisdiction — Fundamental Nature — Duty to Determine Sua Sponte
Jurisdiction is the most fundamental issue that a court faces in any trial and is the very foundation upon which the judicial edifice is constructed. Without jurisdiction, a court cannot take even the first step in its judicial journey to hear and dispose of a case. The court must consider the question of jurisdiction even where the parties fail to raise it.

Legislation cited (34)

  • Treaty for the Establishment of the East African Community Article 3(2)
  • Treaty for the Establishment of the East African Community Article 6(d)
  • Treaty for the Establishment of the East African Community Article 7(2)
  • Treaty for the Establishment of the East African Community Article 27(1)
  • Treaty for the Establishment of the East African Community Article 29
  • Treaty for the Establishment of the East African Community Article 30(1)
  • Treaty for the Establishment of the East African Community Article 30(2)
  • Treaty for the Establishment of the East African Community Article 38
  • Treaty for the Establishment of the East African Community Article 67(3)(d)
  • Treaty for the Establishment of the East African Community Article 71(1)(d)
  • East African Court of Justice Rules of Procedure 2013 Rule 24(1)
  • East African Court of Justice Rules of Procedure 2013 Rule 24(2)
  • East African Court of Justice Rules of Procedure 2013 Rule 24(3)
  • East African Court of Justice Rules of Procedure 2019 Rule 136
  • Vienna Convention on the Law of Treaties 1969
  • Advocates Act 2013 (South Sudan) s.6
  • Advocates Act 2013 (South Sudan) s.6(2)
  • Advocates Act 2013 (South Sudan) s.6(2)(b)
  • Advocates Act 2013 (South Sudan) s.6(2)(c)
  • Advocates Act 2013 (South Sudan) s.7(1)
  • Advocates Act 2013 (South Sudan) s.43
  • Transitional Constitution of the Republic of South Sudan 2011 Article 9
  • Transitional Constitution of the Republic of South Sudan 2011 Article 26
  • Transitional Constitution of the Republic of South Sudan 2011 Article 122(1)
  • Transitional Constitution of the Republic of South Sudan 2011 Article 124(1)
  • Transitional Constitution of the Republic of South Sudan 2011 Article 124(4)
  • Transitional Constitution of the Republic of South Sudan 2011 Article 124(6)
  • Transitional Constitution of the Republic of South Sudan 2011 Article 124(7)
  • Transitional Constitution of the Republic of South Sudan 2011 Article 135(4)
  • Transitional Constitution of the Republic of South Sudan 2011 Article 136
  • Ministry of Legal Affairs and Constitutional Development Act 2008 (South Sudan) s.23
  • Ministry of Legal Affairs and Constitutional Development Act 2008 (South Sudan) s.25(2)(a)
  • Political Parties Act 2012 (South Sudan) s.16(16)(c)
  • SPLM Constitution Article 28(3)

Cases cited (6)

  • Attorney General of the United Republic of Tanzania v Anthony Calist Komu (EACJ Appeal No. 2 of 2015)
  • Emmanuel Mwakisha Mjawasi and Others v Attorney General of the Republic of Kenya (EACJ Reference No. 2 of 2010)
  • Alcon International Limited v Standard Chartered Bank of Uganda and 2 Others (EACJ Appeal No. 3 of 2013)
  • Attorney General of the United Republic of Tanzania v African Network of Animal Welfare (EACJ Reference No. 9 of 2010)
  • Attorney General of the Republic of Kenya v Independent Medical Legal Unit (EACJ Appeal No. 1 of 2011)
  • Attorney General of the Republic of Uganda and Another v Omar Awadh and 6 Others (EACJ Appeal No. 2 of 2012)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Acuil v Attorney General of the Republic of South Sedan and Another (Reference No.4 of 2018) [2021] EACJ 8 (8 October 2021)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.