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East Africa Law Society v Attorney General of United Republic of Tanzania and Another (Reference No.1 of 2019)

East African Court of Justice · [2020] EACJ 16 · 2020 Reference Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference challenging the nomination and appointment of a judge to the East African Court of Justice
Decision
Reference dismissed with costs to the Respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that Article 24 of the Treaty provides two alternative routes for appointment of judges: either the candidate fulfils conditions for high judicial office in their country OR is a jurist of recognized competence. Justice Mjasiri qualified under the second route. The Treaty does not prescribe a uniform nomination process for judges, leaving this to Partner States' discretion in recognition of their sovereignty. The nomination did not violate Articles 6(d) or 7(1) as these provisions do not require public participation in judicial nominations. The Reference was dismissed.

Outcome

Reference dismissed with costs to the Respondents

Facts

On 1 February 2019, the EAC Heads of State appointed Hon. Lady Justice Sauda Mjasiri, a Tanzanian national, as a judge of the Appellate Division of the East African Court of Justice upon nomination by Tanzania. Justice Mjasiri had previously served as a Justice of the Court of Appeal of Tanzania but had retired upon reaching the constitutional retirement age of 65 years prescribed by Article 120 of the Tanzanian Constitution. The Treaty provides for a seven-year term for EACJ judges or retirement at 70 years, whichever comes first. The East Africa Law Society challenged the nomination, arguing it violated the Treaty's requirements for transparency, accountability, public participation, and the qualifications under Article 24. The Applicant contended that the nomination process was opaque and denied other qualified citizens the opportunity to compete, and that Justice Mjasiri could not meet the requirements to hold high judicial office in Tanzania due to her age.

Issues

  1. Whether the process and decision of nominating Hon. Justice Mjasiri contravened Articles 6(d), 7(1) and 24(1) of the Treaty
  2. Whether pursuant to Article 71 of the Treaty, the Second Respondent was obliged to investigate and verify the qualifications and suitability of Hon. Mjasiri's appointment to the Court and advise accordingly
  3. Whether the Respondents are under obligation to institute the process of putting in place guidelines towards transparent, accountable, fair and people-centered process of nominating judges to the Court
  4. Whether the parties are entitled to the remedies sought

Orders

  • Reference dismissed.
  • Costs awarded to the Respondents.

Rules and key headnotes

Treaty Interpretation — Vienna Convention Principles — Good Faith and Ordinary Meaning
Treaties must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of the treaty's object and purpose, applying the principles of good faith, ordinary meaning of terms, context, and the treaty's purpose.
Judicial Appointments — Alternative Qualification Routes — Article 24 Treaty Interpretation
Article 24 of the Treaty for the Establishment of the East African Community provides two distinct and alternative routes for appointment to the Court: either the candidate fulfils the conditions required in their own country for holding high judicial office or the candidate is a jurist of recognized competence in that Partner State. In either case, the candidate must be of proven integrity, impartiality and independence. These routes are to be interpreted exclusively of each other to provide the desired alternative effect.
Judicial Appointments — Nomination Process — Partner State Discretion
Where a treaty does not prescribe a specific process for nomination of judges, the nomination process is left to the discretion of each Partner State in recognition of the principle of sovereignty in international law. The absence of a uniform nomination process does not amount to a treaty violation provided the nominee meets the qualifications specified in the treaty.
Fundamental Principles — Public Participation — Scope and Application
The obligation to adhere to principles of transparency, accountability, and people-centered cooperation in Articles 6 and 7 of the Treaty must be construed in the context of the Community's objectives of establishing the Customs Union and Common Market. These principles do not necessarily impose an obligation upon Partner States to involve the public in each and every one of their internal domestic processes, including the nomination of judges.
Executive Functions — Judicial Non-Interference — Legal Certainty
Provided there is compliance with the legal regime of a Partner State, it is not the role of the Court to superintend Partner States in the exercise of their Executive or other functions. The Executive Branch of Partner States is at liberty to formulate rules or regulations in relation to their internal functioning, and in the absence of express statutory provision, public duties must be executed undeterred where no contrary treaty or statutory provision exists.

Legislation cited (9)

  • Treaty for the Establishment of the East African Community Article 6(d)
  • Treaty for the Establishment of the East African Community Article 7(1)(a)
  • Treaty for the Establishment of the East African Community Article 7(2)
  • 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 50
  • Treaty for the Establishment of the East African Community Article 71
  • Constitution of the United Republic of Tanzania Article 120
  • Vienna Convention on the Law of Treaties 1969 Article 31(1)

Cases cited (4)

  • Katabaazi and 21 Others v Secretary General of EAC and Another (Reference No. 1 of 2007)
  • Simon Peter Ochieng and Another v Attorney General of Uganda (Reference No. 11 of 2013)
  • Attorney General of the Republic of Uganda v Tom Kyahurwenda (Case Stated No. 1 of 2014)
  • 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 United Republic of Tanzania and Another (Reference No.1 of 2019) [2020] EACJ 16 (25 November 2020)
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.