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Africa Network For Animal Welfare v A.G. of Tanzania (Reference 9 of 2010)

East African Court of Justice · [2011] EACJ 51 · 2011 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference brought under Articles 23, 27, and 30 of the Treaty for the Establishment of the East African Community challenging the legality of road construction across Serengeti National Park; ruling on preliminary objections raised by the Respondent
Decision
Preliminary objections dismissed; matter to proceed to substantive hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice has jurisdiction under Article 30(1) of the Treaty to determine the legality of a Partner State's action alleged to infringe the Treaty, including infrastructure development decisions. Article 30(3) does not bar jurisdiction unless the action has been expressly reserved by the Treaty to an institution of a Partner State. Article 39 does not prohibit the Court from granting permanent injunctions; such relief is inherent in the Court's power to make final judgments. A Reference filed within two months of the applicant's knowledge of the facts is not time-barred. Procedural irregularities in titling a Reference do not invalidate it where the substance complies with Rule 24.

Outcome

Preliminary objections dismissed; matter to proceed to substantive hearing

Facts

The Applicant, Africa Network For Animal Welfare, brought a Reference challenging Tanzania's action to construct a road (variously described as the Natta-Mugumu-Tabora B-Klein's Gate-Loliondo Road, North Road, or Superhighway) across the Serengeti National Park, alleging infringement of the Treaty for the Establishment of the East African Community. The Applicant sought a declaration of unlawfulness and a permanent injunction. The Respondent raised six preliminary objections: that the Reference was time-barred; that the Notice of Motion lacked proper enabling provisions; that the application was ambiguous and neither a proper Reference nor Notice of Motion; that the supporting affidavit was defective; that the Court lacked jurisdiction to determine the matter and grant the reliefs sought; and that the application improperly merged two different applications. The Court heard arguments on all objections.

Issues

  1. Whether the East African Court of Justice has jurisdiction to determine the legality of Tanzania's action to construct a road across Serengeti National Park and to grant the reliefs sought.
  2. Whether the action complained of falls within Article 30(3) of the Treaty as an action reserved to an institution of a Partner State.
  3. Whether the Court has power to grant a permanent injunction under Article 39 of the Treaty.
  4. Whether the Reference was time-barred under Article 30(2) of the Treaty.
  5. Whether the Reference was properly instituted under the Rules of Procedure.

Orders

  • Preliminary objection overruled in its entirety.
  • Costs awarded to the Applicant.

Rules and key headnotes

Jurisdiction of East African Court of Justice — Article 30(1) of the Treaty — Legality of Partner State Actions
The East African Court of Justice has jurisdiction under Article 30(1) of the Treaty for the Establishment of the East African Community to determine the legality of any act, regulation, directive, decision or action of a Partner State on the grounds that it is unlawful or infringes the Treaty, regardless of whether the action relates to infrastructure development within the Partner State's sovereign boundaries.
Treaty Interpretation — Article 30(3) — Reservation of Jurisdiction to Partner State Institutions
Article 30(3) of the Treaty, which excludes the Court's jurisdiction where an act, regulation, directive, decision or action has been reserved under the Treaty to an institution of a Partner State, must be read strictly. Unless the Treaty expressly reserves the specific action for determination by an institution of a Partner State, the action does not fall within the ambit of Article 30(3) and the Court retains jurisdiction.
Remedies — Permanent Injunctions — Article 39 of the Treaty
Article 39 of the Treaty, which empowers the East African Court of Justice to make interim orders or issue directions, does not by implication bar the Court from granting permanent injunctions. Permanent injunctions are by their nature final relief similar to judgments, and it is inherent in the Court's power to make final judgments that it may grant permanent or perpetual injunctions where necessary and desirable in the interest of justice.
Limitation — Article 30(2) of the Treaty — Burden of Proof
A party alleging that a Reference is time-barred under Article 30(2) of the Treaty bears the burden of proving when the applicant became aware of the facts complained of. Where the evidence on record contradicts the allegation and the objecting party produces no concrete evidence to substantiate the claim, the objection fails.
Institution of References — Rule 24 of the Rules of Procedure — Procedural Irregularities
A Reference must be instituted in strict compliance with Rule 24 of the East African Court of Justice Rules of Procedure. However, where an applicant mislabels a Reference as a 'Notice of Motion' but otherwise complies with the substance and form required by Rule 24, the mislabelling is a bonafide misapplication that does not invalidate the Reference if it occasions neither injustice nor confusion to the respondent.

Legislation cited (14)

  • Treaty for the Establishment of the East African Community Article 23(1)
  • Treaty for the Establishment of the East African Community Article 23(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 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 30(3)
  • Treaty for the Establishment of the East African Community Article 39
  • East African Court of Justice Rules of Procedure 2010 Rule 21
  • East African Court of Justice Rules of Procedure 2010 Rule 24
  • East African Court of Justice Rules of Procedure 2010 Rule 24(1)
  • East African Court of Justice Rules of Procedure 2010 Rule 24(2)
  • East African Court of Justice Rules of Procedure 2010 Rule 24(4)

Full judgment

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

Africa Network For Animal Welfare v A.G. of Tanzania (Reference 9 of 2010) [2011] EACJ 51 (29 August 2011)
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.