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Adiy and Others v Attorney General of the Revolutionary Government of Zanzibar and Others (Reference No.9 of 2016)

East African Court of Justice · [2020] EACJ 19 · 2020 Reference Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to the East African Court of Justice challenging the legality of the union between Tanganyika and Zanzibar, opposed by preliminary objections on jurisdiction and time limitation
Decision
Reference dismissed on preliminary objections for lack of jurisdiction ratione personae, ratione materiae, and ratione temporis

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 preliminary objections, holding that it lacked jurisdiction ratione personae, ratione materiae, and ratione temporis. The Court found that Zanzibar is neither a Partner State nor an institution of the Community and struck out the first and second respondents. The Court held that the United Republic of Tanzania could not be responsible for acts predating its existence in 1964. Applying the principle of non-retrospective application of treaties under Article 28 of the Vienna Convention, the Court ruled it had no jurisdiction over events occurring before the Treaty came into force. The Reference was also time-barred under Article 30(2) of the Treaty, having been filed more than 52 years after the 1964 union.

Outcome

Reference dismissed on preliminary objections for lack of jurisdiction ratione personae, ratione materiae, and ratione temporis

Facts

The applicants, comprising 40,000 residents of Zanzibar and citizens of the United Republic of Tanzania, filed a Reference challenging the validity of the 1964 union between the Republic of Tanganyika and the Peoples Republic of Zanzibar. They sought declarations that the Articles of Union allegedly signed on 22 April 1964 were non-existent, a nullity ab initio, and not ratified, and that the Revolutionary Government of Zanzibar is an autonomous and sovereign state. The respondents filed preliminary objections challenging the Court's jurisdiction on the grounds that the Reference questioned the sovereignty of a founding member of the East African Community and that the matter was time-barred under Article 30(2) of the Treaty. The applicants argued that the Court had jurisdiction once seized of the matter and that the respondents could not raise substantially similar objections again.

Issues

  1. Whether the Court has jurisdiction to entertain a Reference questioning the sovereignty of the United Republic of Tanzania, a founding member of the East African Community.
  2. Whether the Reference is time-barred under Article 30(2) of the Treaty for the Establishment of the East African Community.
  3. Whether the principle of non-retrospective application of treaties bars the Court from hearing matters concerning events that occurred before the Treaty came into force.

Orders

  • The First and Second Respondents struck out from the Reference.
  • Both preliminary objections upheld.
  • Reference dismissed for lack of jurisdiction.
  • Each party to bear its own costs.

Rules and key headnotes

Jurisdiction — East African Court of Justice — Ratione Personae — Locus Standi of Non-Partner States
Under Article 30(1) of the Treaty for the Establishment of the East African Community, a Reference to the East African Court of Justice can only be in respect of an act, regulation, directive, decision or action of a Partner State or an institution of the Community. Zanzibar, being neither a Partner State nor an institution of the Community, has no locus standi before the Court, and neither do its officials.
Jurisdiction — East African Court of Justice — Ratione Materiae — Acts Predating State Existence
A Partner State cannot be held responsible for actions and decisions that predate its existence. Where the acts complained of gave birth to the Partner State itself, those acts cannot be imputed to that State for purposes of establishing the Court's ratione materiae jurisdiction under Article 30(1) of the Treaty.
Treaties — Non-Retrospective Application — Vienna Convention Article 28
Under both general international law and Article 28 of the Vienna Convention on The Law of Treaties, a treaty's provisions do not bind a party in relation to any act or fact which took place before the date of entry into force of the treaty with respect to that party, unless a different intention appears from the treaty or is otherwise established. This principle of non-retroactive application is a fundamental issue that goes to the root of jurisdiction and must be determined at the outset.
Jurisdiction — Fundamental Nature — Judicial Authority
Jurisdiction is the most fundamental issue that a court faces in any trial. It is the very foundation upon which the judicial edifice is constructed and from which springs the flow of the judicial process. Without jurisdiction, a court cannot take even the first step in its judicial journey to hear and dispose of a case.
Limitation — Time Bars — Article 30(2) of EAC Treaty — Computation of Time
Under Article 30(2) of the Treaty for the Establishment of the East African Community, proceedings must be instituted within two months of the enactment, publication, directive, decision or action complained of. The starting date of an act complained of is not the day the act ends, but the day it is first effected. The Court has no power to extend or condone the prescribed time limit for any reason, including for continued violation.
Preliminary Objections — Points of Law — Timing of Raising Objections
It is trite law that a point of law can be raised at any stage of the proceedings. The rationale is that it would save courts time and resources if the objection can dispose of the case at the earliest. A party is not precluded from raising a preliminary objection on a point of law even where a similar objection was previously raised but not prosecuted or determined.

Legislation cited (15)

  • Treaty for the Establishment of the East African Community Article 1
  • Treaty for the Establishment of the East African Community Article 3
  • Treaty for the Establishment of the East African Community Article 27
  • Treaty for the Establishment of the East African Community Article 27(1)
  • Treaty for the Establishment of the East African Community Article 28
  • Treaty for the Establishment of the East African Community Article 30
  • 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 31
  • Treaty for the Establishment of the East African Community Article 32
  • East African Court of Justice Rules of Procedure 2013 Rule 41(1)
  • East African Court of Justice Rules of Procedure 2013 Rule 41(2)
  • East African Court of Justice Rules of Procedure 2019 Rule 127(1)
  • East African Court of Justice Rules of Procedure 2019 Rule 136
  • Vienna Convention on The Law of Treaties Article 28

Cases cited (7)

  • Attorney General of the United Republic of Tanzania v Anthony Calist Komu (EACJ Appeal No. 2 of 2015)
  • Attorney General of the Republic of Uganda v Omar Awadh and 6 Others (EACJ Appeal No. 2 of 2012)
  • Attorney General of the Republic of Kenya v Independent Medical Legal Unit (EACJ Appeal No. 1 of 2011)
  • Alcon International Limited v Standard Chartered Bank of Uganda and 2 Others (EACJ Appeal No. 3 of 2013)
  • Emmanuel Mwakisha Mjawasi and Others v Attorney General of the Republic of Kenya (EACJ Reference No. 2 of 2010)
  • Attorney General of the United Republic of Tanzania v African Network of Animal Welfare (EACJ Reference No. 9 of 2010)
  • Brazil - Measures Affecting Dessicated Coconut, Brazil vs. Philippines, Appellate Body Report WT/DS22/AB/R, Report No AB-1996-4, Doc No 97-0695, ITL 137 (WTO 1997), DSR 1997:1, 167, 21st February 1997

Full judgment

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Adiy and Others v Attorney General of the Revolutionary Government of Zanzibar and Others (Reference No.9 of 2016) [2020] EACJ 19 (29 September 2020)
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.