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East Africa Law Society v Attorney General of the United Republic of Tanzania and Another (Appeal No.2 of 2021)

East African Court of Justice · [2022] EACJ 30 · 2022 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 the dismissal of a reference concerning the nomination and appointment of a judge to the Appellate Division
Decision
Appeal dismissed; judgment of the First Instance Division upheld save for costs order which was reversed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Appellate Division dismissed the appeal, holding that Article 24(1) of the EAC Treaty provides two disjunctive qualifications for judicial appointment: a nominee must either be qualified to hold high judicial office in the nominating Partner State or be a jurist of recognized competence. A retired judge who meets the latter criterion may be validly appointed even if no longer qualified under national law. The Treaty does not mandate public participation or stakeholder consultation in the nomination process, and the Secretary General had no obligation to investigate a nomination that complied with Article 24(1). The Trial Court did not exhibit bias. Costs order reversed: each party to bear its own costs.

Outcome

Appeal dismissed; judgment of the First Instance Division upheld save for costs order which was reversed

Facts

On 1 February 2019, the EAC Summit appointed Hon. Lady Justice Sauda Mjasiri, a retired Tanzanian Court of Appeal judge, to the Appellate Division of the East African Court of Justice. She had retired in 2018 upon reaching the mandatory retirement age of 65 years under the Tanzanian Constitution. The East Africa Law Society challenged her nomination and appointment, arguing that the process was opaque, lacked transparency and public participation, and that she was disqualified by age. The Society contended that the nomination violated Articles 6(d), 7(1), and 24 of the EAC Treaty. The First Instance Division dismissed the reference with costs. The Society appealed, alleging errors of law in the interpretation of Article 24, failure to require investigation by the Secretary General, and bias by the Trial Court.

Issues

  1. Whether the First Instance Division erred in law by interpreting the two limbs of Article 24 as exclusive of each other without regard to other provisions of the Treaty.
  2. Whether the First Instance Division erred in law by holding that the Second Respondent was under no obligation to investigate and verify the qualifications of Hon. Justice Mjasiri as per Article 71 of the Treaty.
  3. Whether the First Instance Division failed in their duty to act fairly and impartially by proceeding with open bias against the Appellant's case and by taking into account extraneous matters not relevant to the case.
  4. What remedies are the parties entitled to.

Orders

  • Appeal dismissed.
  • Judgment of the Trial Court upheld except as to costs.
  • Order as to costs reversed.
  • Each party shall bear its own costs in this Court and in the Trial Court.

Rules and key headnotes

Treaty Interpretation — Disjunctive Qualifications for Judicial Appointment
Article 24(1) of the EAC Treaty sets out two disjunctive, not conjunctive, qualifications for appointment as a judge: a nominee must either fulfil the conditions required in their own country for holding high judicial office, or be a jurist of recognized competence in their respective Partner State. A candidate does not have to satisfy both criteria.
Treaty Interpretation — Retirement Age under Treaty Prevails over National Law
Where the EAC Treaty sets the retirement age for judges of the East African Court of Justice at 70 years under Article 25(2), a nominee who has retired from national judicial office at 65 years under national law but has not attained 70 years may validly be appointed as a judge of the Court, provided the nominee meets the qualifications under Article 24(1).
Judicial Appointments — No Mandatory Public Participation under EAC Treaty
The EAC Treaty does not impose a requirement for public participation, stakeholder consultation, or advertisement of vacancies in the nomination and appointment of judges to the East African Court of Justice. The process of nomination is left to the discretion of each Partner State, subject only to the qualifications set out in Article 24(1).
Secretary General's Duty to Investigate — Discretionary Power under Article 71
Article 71(1)(d) of the EAC Treaty confers a discretionary power on the Secretary General to investigate matters affecting the Community. Where a nomination complies with the requirements of Article 24(1) and Article 25(2) of the Treaty, the Secretary General is under no obligation to investigate or verify the qualifications of the nominee or the nomination process.
Burden of Proof — Allegation of Procedural Irregularity
A party alleging that a process violated the Treaty bears the burden of proving which procedures stipulated by the Treaty were not followed. Allegations unsupported by evidence or not founded on provisions of the Treaty cannot sustain a reference or an appeal.
Costs — Public Interest Litigation
Where a case is arguable and raises significant issues on the proper interpretation and future application of Treaty provisions, the Court may exercise its discretion under Rule 127(1) of the East African Court of Justice Rules of Procedure to depart from the rule that costs follow the event and order that each party bear its own costs, notwithstanding that the appellant loses the appeal.

Legislation cited (13)

  • Treaty for the Establishment of the East African Community Article 6(d)
  • Treaty for the Establishment of the East African Community Article 7(1)
  • Treaty for the Establishment of the East African Community Article 23
  • Treaty for the Establishment of the East African Community Article 24
  • Treaty for the Establishment of the East African Community Article 24(1)
  • Treaty for the Establishment of the East African Community Article 25(2)
  • Treaty for the Establishment of the East African Community Article 35A
  • Treaty for the Establishment of the East African Community Article 71
  • Treaty for the Establishment of the East African Community Article 71(1)(d)
  • Constitution of the United Republic of Tanzania Article 120
  • Vienna Convention on the Law of Treaties Article 27
  • Vienna Convention on the Law of Treaties Article 31
  • East African Court of Justice Rules of Procedure 2019 Rule 127(1)

Cases cited (10)

  • Timothy Alvin Kahoho v Secretary General of the East African Community (Appeal No. 2 of 2013)
  • Attorney General of the United Republic of Tanzania v African Network for Animal Welfare (Appeal No. 3 of 2011)
  • East Africa Law Society and Another v Attorney General of the Republic of Kenya and Another (Reference No. 3)
  • Simon Peter Ochieng and Another v Attorney General of the Republic of Uganda (Appeal No. 4 of 2015)
  • Simon Peter Ochieng and Another v Attorney General of the Republic of Uganda (Reference No. 11 of 2013)
  • Malawi Mobile Limited v Common Market of East and Southern Africa (Reference No. 1 of 2017)
  • Henry Kyalimpa v Attorney General of Uganda (Appeal No. 6 of 2014)
  • Attorney General of the United Republic of Tanzania v Anthony Calist Komu (Appeal No. 2 of 2015)
  • Re B [2008] UKHL 35
  • Attorney General of the Republic of Burundi v Secretary General of the East African Community and Another (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.

East Africa Law Society v Attorney General of the United Republic of Tanzania and Another (Appeal No.2 of 2021) [2022] EACJ 30 (31 August 2022)
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.