Wakilii

Democratic Party and Another v Secretary General of East African Community and Others (Application 6 of 2011)

East African Court of Justice · [2011] EACJ 49 · 2011 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for interim injunction arising from Reference No. 6 of 2011
Decision
Interim injunction granted restraining elections to EALA pending determination of the main Reference

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court granted an interim injunction restraining the Attorney General and Parliament of Uganda from conducting elections of Representatives to the East African Legislative Assembly until determination of Reference No. 6 of 2011. The Court found that the applicants established a prima facie case that the Rules of Procedure of the Parliament of Uganda 2006 contravene Article 50 of the EAC Treaty and the Ugandan Constitution, that irreparable injury would result if improperly elected representatives sat in the EALA, and that the balance of convenience favoured halting the election process pending the final outcome of the Reference.

Outcome

Interim injunction granted restraining elections to EALA pending determination of the main Reference

Facts

The Democratic Party and its legal advisor applied for an interim injunction to restrain the East African Legislative Assembly, the Attorney General, and the Parliament of Uganda from conducting elections to the EALA. The applicants contended that Rules 11(1) and Appendix B r 3, 10, and 11 of the Rules of Procedure of the Parliament of Uganda 2006 contravene Article 50 of the EAC Treaty and several provisions of the Ugandan Constitution by discriminating against opposition members and limiting their right to vie for election to the EALA. The Constitutional Court of Uganda had previously declared these Rules inconsistent with both the Ugandan Constitution and Article 50 of the Treaty in the Jacob Oulanya case, but execution of that decision was stayed pending appeal to the Supreme Court. The applicants feared that elections would proceed under the impugned Rules, disenfranchising them based on numerical strength rather than fair electoral procedures. The EALA's current term was set to expire in June 2012, and campaigns were already underway.

Issues

  1. Whether the applicants have established a prima facie case with a probability of success warranting the grant of an interim injunction.
  2. Whether the applicants will suffer irreparable injury if the interim injunction is not granted.
  3. Whether the balance of convenience favours the grant of an interim injunction restraining elections to the East African Legislative Assembly pending determination of the main Reference.

Orders

  • The Attorney General and the Parliament of the Republic of Uganda are hereby restrained from conducting elections of Representatives of the Republic of Uganda to the EALA until the determination of the Reference No. 6 of 2011.
  • The costs of the application shall be in the cause.

Rules and key headnotes

Civil Procedure — Interim Injunctions — Principles for Grant
For an interim injunction to issue, the court must be satisfied that the applicant has a prima facie case with a probability of success, that the applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages, and if the court is in doubt, it will decide the application on the balance of convenience.
Civil Procedure — Interim Injunctions — Prima Facie Case
A prima facie case is established when the claim is not frivolous or vexatious and there is a serious case to be determined by the court. At the interlocutory stage, the court must refrain from making any determination on the merits of the application or any defence to it, and a finding of a prima facie case means no more than that if the respondents do not put up any plausible defence the applicants would succeed.
Constitutional Law — Treaty Obligations — Domestic Implementation
Where domestic parliamentary procedures are alleged to infringe treaty obligations, and a constitutional court has previously declared those procedures inconsistent with both the national constitution and the treaty, a prima facie case exists for interim relief even where the constitutional court's decision has been stayed pending appeal, because in law those rules remain operational.
Civil Procedure — Interim Injunctions — Irreparable Injury
Where elections are to be conducted under rules alleged to contravene treaty provisions, and if the elections proceed and the challenge is eventually upheld, not only will the applicants be denied an opportunity to participate fairly, but improperly elected representatives will sit in the legislative assembly and the credibility of that assembly will be questionable. Such injury cannot be adequately compensated by damages and constitutes irreparable injury warranting interim relief.
Civil Procedure — Interim Injunctions — Balance of Convenience
Where a government has commenced the process of amending impugned rules but the process is proceeding too slowly, and the matter is already before the court, the balance of convenience favours halting the election process pending the final outcome of the reference, as it would do no harm to the respondents to await the court's determination.

Legislation cited (11)

Cases cited (9)

  • Professor Anyang' Nyongo and Ten Others v Attorney General of Kenya and Five Others (Reference No. 1 of 2006)
  • East African Law Society and Three Others v Attorney General of Kenya and Three Others (Application No. 9 of 2007)
  • Jacob Oulanya v Attorney General of Uganda (Constitutional Petition No. 28 of 2006)
  • Sargeant v Patel (1972) 16 EACA 63
  • Giella v Cassman Brown Co Ltd (1973) EA 358
  • Mary Ariviza and Another v Attorney General of Kenya and Another (Application No. 3 of 2010)
  • EA Industries v Trufoods (1972) EA 420
  • American Cyanamid v Ethicon [1975] All ER 504
  • European Parliament v Council of the European Communities (Case C-70/88)

Full judgment

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

Democratic Party and Another v Secretary General of East African Community and Others (Application 6 of 2011) [2011] EACJ 49 (30 November 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.