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Democratic Party v Secretary General of The East African Community and Ors. (Appeal 1 of 2014)

East African Court of Justice · [2015] EACJ 97 · 2015 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the First Instance Division challenging dismissal of a reference concerning Partner States' failure to deposit declarations under the African Charter Protocol
Decision
Appeal partly allowed on the jurisdictional issue; otherwise dismissed

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 to interpret and apply provisions of the African Charter on Human and Peoples' Rights in the context of the EAC Treaty, particularly where Treaty Articles 6(d) and 7(2) incorporate obligations to protect human rights in accordance with the Charter. However, Article 34(6) of the Protocol to the African Charter does not impose a specific time limit for Partner States to deposit declarations accepting the African Court's jurisdiction; the phrase 'or any time thereafter' provides discretion. Consequently, the failure to deposit declarations does not constitute a violation of the Treaty, Charter, or Protocol. The Secretary General's supervisory role under Article 29(1) does not extend to compelling Partner States to deposit such declarations where no Treaty violation has occurred.

Outcome

Appeal partly allowed on the jurisdictional issue; otherwise dismissed

Facts

The Democratic Party challenged Uganda, Kenya, Rwanda, and Burundi for failing to deposit declarations under Article 34(6) of the Protocol to the African Charter on Human and Peoples' Rights, which would allow individuals and NGOs to bring cases directly before the African Court. The Appellant argued this delay violated the EAC Treaty, the African Charter, and the Vienna Convention. During proceedings before the First Instance Division, Rwanda deposited its declaration and the claim against it was abandoned. The First Instance Division held it had jurisdiction over the Treaty but not over the African Charter or Protocol, and found no violation because Article 34(6) imposes no specific deadline for depositing declarations. The Democratic Party appealed, contending the Court has jurisdiction to interpret the Charter in the context of Treaty obligations and that the delay constituted a Treaty violation.

Issues

  1. Whether the East African Court of Justice has jurisdiction to interpret the African Charter on Human and Peoples' Rights, its Protocol, and other relevant international conventions and instruments to which EAC Partner States are parties.
  2. Whether the delay by Uganda, Kenya, and Burundi in depositing their declarations under Articles 5(3) and 34(6) of the Protocol to the African Charter constituted a violation of the EAC Treaty, the African Charter, the Protocol, and the Vienna Convention on the Law of Treaties.
  3. Whether the Secretary General of the East African Community had a duty under the EAC Treaty to supervise Partner States to ensure compliance with their obligations under the African Charter, the Protocol, and the Vienna Convention.
  4. Whether the First Instance Division erred in refusing to award costs against the Respondents.
  5. Whether the Appellant is entitled to the remedies sought.

Orders

  • The First Instance Division's holding that the Court has no jurisdiction to ensure adherence to the provisions of the African Charter and its Protocol is set aside.
  • The Appeal is otherwise dismissed.
  • Each Party shall bear its own costs, both in the Appellate Division and in the First Instance Division.

Rules and key headnotes

Jurisdiction — East African Court of Justice — Interpretation of International Instruments Incorporated by Reference in the EAC Treaty
The East African Court of Justice has jurisdiction to interpret and apply provisions of the African Charter on Human and Peoples' Rights and other international instruments where the EAC Treaty explicitly or implicitly incorporates obligations arising from those instruments, particularly through Articles 6(d) and 7(2) which require Partner States to protect human rights in accordance with the Charter.
Treaty Interpretation — Application of Vienna Convention on the Law of Treaties by Regional Courts
A court established by treaty to interpret that treaty is not barred from applying the Vienna Convention on the Law of Treaties; indeed, it would be illogical for such a court to be precluded from applying the primary canons of treaty interpretation set out in Articles 31 and 32 of the Vienna Convention.
African Charter on Human and Peoples' Rights — Protocol — Discretion of States to Deposit Declarations Accepting Jurisdiction
Article 34(6) of the Protocol to the African Charter on Human and Peoples' Rights, which provides that a State Party 'shall make a declaration accepting the competence of the Court... at the time of the ratification of this Protocol or any time thereafter', does not impose a specific time limit for depositing such declarations; the phrase 'or any time thereafter' confers discretion on State Parties as to the timing of deposit.
EAC Treaty — Fundamental Principles — Obligation to Protect Human Rights in Accordance with the African Charter
Article 6(d) of the EAC Treaty, which obliges Partner States to adhere to principles including 'recognition, promotion and protection of Human and Peoples' Rights in accordance with the provisions of the African Charter on Human and Peoples' Rights', creates an obligation on Partner States to act in good faith and in accordance with the Charter; failure to do so constitutes an infringement of the Treaty justiciable before the East African Court of Justice.
EAC Secretary General — Supervisory Role — Discretion to Investigate Alleged Treaty Violations
Article 29(1) of the EAC Treaty confers on the Secretary General a supervisory role and discretion to investigate alleged Treaty violations on his or her own initiative; however, where no Treaty violation has occurred, the Secretary General is not obliged to compel Partner States to take action beyond the scope of their Treaty obligations.

Legislation cited (33)

  • Treaty for the Establishment of the East African Community Art.5
  • Treaty for the Establishment of the East African Community Art.6
  • Treaty for the Establishment of the East African Community Art.6(d)
  • Treaty for the Establishment of the East African Community Art.7(2)
  • Treaty for the Establishment of the East African Community Art.8(1)(c)
  • Treaty for the Establishment of the East African Community Art.23
  • Treaty for the Establishment of the East African Community Art.27
  • Treaty for the Establishment of the East African Community Art.27(1)
  • Treaty for the Establishment of the East African Community Art.28
  • Treaty for the Establishment of the East African Community Art.29
  • Treaty for the Establishment of the East African Community Art.29(1)
  • Treaty for the Establishment of the East African Community Art.30
  • Treaty for the Establishment of the East African Community Art.126
  • Treaty for the Establishment of the East African Community Art.130
  • Treaty for the Establishment of the East African Community Art.131
  • African Charter on Human and Peoples' Rights Art.1
  • African Charter on Human and Peoples' Rights Art.1(2)
  • African Charter on Human and Peoples' Rights Art.2
  • African Charter on Human and Peoples' Rights Art.7
  • African Charter on Human and Peoples' Rights Art.13
  • African Charter on Human and Peoples' Rights Art.26
  • African Charter on Human and Peoples' Rights Art.62
  • African Charter on Human and Peoples' Rights Art.65
  • African Charter on Human and Peoples' Rights Art.66
  • Protocol to the African Charter on Human and Peoples' Rights Art.1
  • Protocol to the African Charter on Human and Peoples' Rights Art.2
  • Protocol to the African Charter on Human and Peoples' Rights Art.3
  • Protocol to the African Charter on Human and Peoples' Rights Art.5
  • Protocol to the African Charter on Human and Peoples' Rights Art.5(3)
  • Protocol to the African Charter on Human and Peoples' Rights Art.34
  • Protocol to the African Charter on Human and Peoples' Rights Art.34(6)
  • Vienna Convention on the Law of Treaties Art.31
  • Vienna Convention on the Law of Treaties Art.32(b)

Cases cited (8)

  • James Katabazi v Secretary General of the EACJ (Reference No. 1 of 2007)
  • Katabazi & Another v Secretary General of the East African Community & 4 Others (EACJ 2007)
  • Callist Mwatela & Others v Secretary General of the East African Community (Reference No. 1 of 2005)
  • Prof. Anyang' Nyongo & 10 Others v AG Kenya & Others (Reference No. 1 of 2006)
  • Independent Medical Legal Unit v Attorney General of the Republic of Kenya (Appeal No. 1 of 2011)
  • Attorney General of the Republic of Rwanda v Plaxeda Rugumba (Appeal No. 1 of 2012)
  • Nottebohm (cited in the Law and Practice of International Court. p. 523)
  • Chorzow Factory (Jurisdiction case page 519)

Full judgment

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

Democratic Party v Secretary General of The East African Community and Ors. (Appeal 1 of 2014) [2015] EACJ 97 (28 July 2015)
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