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Attorney General of the United Republic of Tanzania v Mbowe and Others (Appeal 5 of 2022)

East African Court of Justice · [2023] EACJ 8 · 2023 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the First Instance Division of the East African Court of Justice challenging a finding that certain provisions of the Political Parties (Amendment) Act No. 1 of 2019 violated the Treaty for the Establishment of the East African Community
Decision
Appeal dismissed; First Instance Division judgment confirmed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice Appellate Division dismissed the appeal by the Attorney General of Tanzania challenging the First Instance Division's finding that sections 3, 4, 5, 9, 15, and 29 of the Political Parties (Amendment) Act No. 1 of 2019 violated the Treaty for the Establishment of the East African Community. The Court held that the Trial Court correctly applied the three-tier proportionality test to determine whether the impugned provisions violated the Treaty, that the Respondents discharged their burden of proof, and that the Trial Court did not err in its application of the law.

Outcome

Appeal dismissed; First Instance Division judgment confirmed

Facts

The Respondents, leaders and members of political parties in Tanzania, challenged the Political Parties (Amendment) Act No. 1 of 2019 before the First Instance Division of the East African Court of Justice, alleging that certain provisions violated Articles 6(d), 7(2), and 8(1)(c) of the Treaty for the Establishment of the East African Community. The impugned provisions granted extensive powers to the Registrar of Political Parties, including monitoring intra-party elections, regulating civic education, demanding information from political parties, and imposing penalties. The First Instance Division found that sections 3, 4, 5, 9, 15, and 29 failed the three-tier proportionality test and were in violation of the Treaty. The Attorney General of Tanzania appealed, arguing that the Trial Court erred in its application of the burden of proof, the three-tier test, and principles of statutory interpretation.

Issues

  1. Whether the First Instance Division erred in law by holding that it had jurisdiction to hear and determine the Reference
  2. Whether the First Instance Division erred in law by holding that the provisions of Sections 3, 4, 5, 9, 15 and 29 of the Political Parties (Amendment) Act No. 1 of 2019 violated Articles 6(d), 7(2) and 8(1)(c) of the Treaty
  3. What remedies, if any, are the parties entitled to

Orders

  • Appeal dismissed.
  • Judgment of the First Instance Division confirmed.
  • Each party to bear its own costs both in the Reference and in the Appeal.

Rules and key headnotes

Treaty Interpretation — Three-Tier Proportionality Test — Application to National Legislation
When determining whether national legislation violates a treaty, the East African Court of Justice applies the three-tier proportionality test: (1) whether the limitation is provided by law and is clear and accessible; (2) whether the objective of the law is pressing and substantial; and (3) whether the State has chosen a proportionate means to achieve its objective.
Burden of Proof — Limitation of Rights — Justification by the State
Once a party demonstrates that legislation introduces limitations to rights protected by a treaty, the burden shifts to the State to justify that such limitations are reasonable, proportionate, and consistent with the treaty. This does not constitute unlawful shifting of the burden of proof.
Treaty Interpretation — Principles of Statutory Interpretation — Inapplicability
The East African Court of Justice is mandated to interpret and apply the Treaty for the Establishment of the East African Community, not to interpret national statutes. When scrutinizing national legislation for consistency with the Treaty, the Court applies principles of treaty interpretation and the three-tier proportionality test, not domestic principles of statutory interpretation.
Appeals — Grounds of Appeal — Limitation to Points of Law
Under Article 35A of the Treaty for the Establishment of the East African Community and Rule 86 of the East African Court of Justice Rules of Procedure 2019, appeals to the Appellate Division are limited to points of law, lack of jurisdiction, or procedural irregularity. The Appellate Division is precluded from re-evaluating findings of fact unless the Trial Court's decision is palpably perverse or based on a complete misreading of evidence.
Judgments — Duty to State Reasons — Sufficiency
A court is required to provide reasons for its decision. Reasons are sufficient if they can be discerned from reading the judgment as a whole, including the court's analysis of the issues, application of legal principles, and conclusions reached on each point.
Stare Decisis — Judicial Precedent — Application by the East African Court of Justice
The East African Court of Justice firmly recognizes the doctrine of judicial precedent as a cardinal rule in the determination of cases. Judicial precedent engenders legal certainty in the administration of justice, ensuring that similar facts attract similar results from courts.
Costs — Public Interest Litigation — Discretion of the Court
In litigation involving matters of public interest, the East African Court of Justice has consistently exercised its discretion not to award costs, ordering instead that each party bear its own costs.

Legislation cited (17)

  • 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 8(1)(c)
  • Treaty for the Establishment of the East African Community Article 27
  • Treaty for the Establishment of the East African Community Article 35A
  • Political Parties (Amendment) Act No. 1 of 2019 s.3
  • Political Parties (Amendment) Act No. 1 of 2019 s.4
  • Political Parties (Amendment) Act No. 1 of 2019 s.5
  • Political Parties (Amendment) Act No. 1 of 2019 s.9
  • Political Parties (Amendment) Act No. 1 of 2019 s.15
  • Political Parties (Amendment) Act No. 1 of 2019 s.29
  • East African Court of Justice Rules of Procedure 2019 Rule 79
  • East African Court of Justice Rules of Procedure 2019 Rule 86
  • East African Court of Justice Rules of Procedure 2019 Rule 120
  • East African Court of Justice Rules of Procedure 2019 Rule 127
  • Vienna Convention on the Law of Treaties 1969 Article 31
  • Constitution of the United Republic of Tanzania 1977 Article 30(2)

Cases cited (18)

  • Henry Kyarimpa v Attorney General of Uganda (Appeal No. 6 of 2014)
  • Rwenga Etienne & Other v Secretary General of EAC (Reference No. 7 of 2015)
  • CORD v The Republic of Kenya & others (HC Petition No. 2 of 2017)
  • Media Council of Tanzania & 2 Others v Attorney General of the United Republic of Tanzania (Reference No. 2 of 2017)
  • Julius Ndyanabo v Attorney General (2004) TLR 14
  • East African Law Society & 4 Others v Attorney General of Kenya & 3 Others (Reference No. 3 of 2007)
  • Barclays Bank vs. Phylisiah Hussein Mcheni, Civil Appeal
  • Ngasa Kapuli Sengerema v Republic (Criminal Appeal No. 160 'B' of 2014)
  • Alice Nijimbere v Secretary General of EAC (Appeal No. 1 of 2016)
  • Angela Amudo v Secretary General of the East African Community (Appeal No. 4 of 2015)
  • Kukutio Ole Pumbun v Attorney General & Another [1993] TLR 159
  • Julius Ishengoma Ndyanabo v Attorney General [2004] TLR 41
  • Burundian Journalists' Union vs Attorney General of the Republic of Burundi
  • Fred Mukasa Mbidde v Attorney General of Burundi & Other (Application No. 6 of 2018)
  • Damodar Lal v Sohan Devi & Others (CA No. 231 of 2015)
  • Simon Peter Ochieng vs the Attorney General of the Republic of Uganda
  • Attorney General of Uganda v East African Law Society (Application No. 7 of 2012)
  • Attorney General of Burundi v Secretary General of the East African Community (Appeal No. 2 of 2019)

Full judgment

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

Attorney General of the United Republic of Tanzania v Mbowe and Others (Appeal 5 of 2022) [2023] EACJ 8 (26 May 2023)
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.