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East African Law Centre For Trade Policy And Law v Secretary General of The East African Community (Reference 9 of 2012)

East African Court of Justice · [2013] EACJ 47 · 2013 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference challenging amendments to the EAC Treaty and dispute settlement mechanisms in Protocols
Decision
Reference partly allowed — amendments declared to undermine EACJ supremacy; Protocol dispute mechanisms do not oust jurisdiction

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that the proviso to Article 27(1) and Article 30(3) of the EAC Treaty undermine the supremacy of the East African Court of Justice and contravene Articles 5, 6, 8(1), (4), (5) and 23 of the Treaty. However, the dispute settlement mechanisms in the Customs Union and Common Market Protocols do not oust the Court's original jurisdiction. The amendments were found to be inconsistent with the Treaty's objective of ensuring uniform interpretation by the EACJ as the supreme judicial organ.

Outcome

Reference partly allowed — amendments declared to undermine EACJ supremacy; Protocol dispute mechanisms do not oust jurisdiction

Facts

The Applicant, a registered company in Uganda, challenged amendments to the EAC Treaty made in 2006 and 2007 that introduced a proviso to Article 27(1) and a new Article 30(3). These amendments limited the EACJ's jurisdiction by excluding matters where jurisdiction is conferred on Partner State organs or institutions. The Applicant also challenged dispute settlement mechanisms in the Customs Union Protocol (Article 24) and Common Market Protocol (Article 54(2)), arguing they denied original jurisdiction to the EACJ. The Applicant contended these changes contradicted the Treaty's original design, which established the EACJ as the supreme judicial body for Treaty interpretation. The Respondent argued the amendments filled a legal vacuum pending extension of the Court's jurisdiction under Article 27(2), and that the Protocol mechanisms addressed technical trade disputes beyond the Court's current mandate.

Issues

  1. Whether the amendment of the Treaty to introduce a proviso to Article 27(1) and Article 30(3) is inconsistent with or in contravention of Articles 5, 6, 8(1), (4) & (5), 23, 33(2) and 126 of the Treaty.
  2. Whether the Customs Union Protocol and the Common Market Protocol in as far as they do not grant the East African Court of Justice jurisdiction of handling disputes arising from the implementation of these Protocols infringe Articles 5, 6, 8(1), (4) & (5), 23, 27(1), 30(1), (3), 33(2) and 126 of the Treaty.
  3. Whether the Applicant is entitled to the declarations sought.

Orders

  • The proviso to Article 27(1) and Article 30(3) undermine the supremacy of the EACJ and therefore contravene Articles 5, 6, 8(1), (4) & (5) and 23 of the Treaty.
  • The dispute settlement mechanisms provided for under the Customs Union and the Common Market Protocol do not oust the original jurisdiction of the Court of handling disputes thereunder.
  • Either party shall bear his or its costs, since this Reference falls in the category of public interest litigation.

Rules and key headnotes

Treaty Interpretation — Supremacy of Regional Court — Jurisdiction
The use of the word 'over' in Article 27(1) of the EAC Treaty was deliberately chosen to mean supremacy in matters of interpretation and application of the Treaty by the EACJ, the only judicial organ of the Community under the Treaty.
Treaty Amendment — Undermining Judicial Supremacy — Inconsistency with Treaty Objectives
Amendments to a treaty that undermine the supremacy of the regional court as the judicial body responsible for ensuring adherence to law in treaty interpretation are inconsistent with the treaty, even if they do not completely oust the court's jurisdiction.
Jurisdiction — Concurrent Jurisdiction — Risk of Conflicting Decisions
Granting concurrent jurisdiction to national organs and institutions to interpret a regional treaty creates a high risk of conflicting decisions and undermines the uniform application of Community law, particularly where multiple Partner States may confer jurisdiction on various national bodies.
Treaty Amendment — Consultation Requirements — People-Centered Cooperation
Amendments to a treaty made without adequate consultation with the people constitute an infringement of the operational principle of people-centered cooperation and are inconsistent with the spirit and intendment of the treaty.
Jurisdiction — Protocols as Integral Parts of Treaty — Interpretative Authority
Where a treaty provides that protocols shall form an integral part of the treaty, the regional court's jurisdiction over interpretation and application of the treaty extends to those protocols, and the jurisdiction can only be ousted by express provision, not by implication.
Alternative Dispute Resolution — Specialized Tribunals — Relationship with Court Jurisdiction
The establishment of specialized dispute resolution mechanisms for technical trade matters represents a pragmatic approach to dispute resolution and does not, directly or by implication, take away the interpretative jurisdiction of the regional court over treaty matters.

Legislation cited (19)

  • Treaty for the Establishment of the East African Community Article 5
  • Treaty for the Establishment of the East African Community Article 6
  • Treaty for the Establishment of the East African Community Article 8(1)
  • Treaty for the Establishment of the East African Community Article 8(4)
  • Treaty for the Establishment of the East African Community Article 8(5)
  • Treaty for the Establishment of the East African Community Article 23
  • Treaty for the Establishment of the East African Community Article 27(1)
  • Treaty for the Establishment of the East African Community Article 27(2)
  • Treaty for the Establishment of the East African Community Article 30(1)
  • Treaty for the Establishment of the East African Community Article 30(3)
  • Treaty for the Establishment of the East African Community Article 33
  • Treaty for the Establishment of the East African Community Article 33(2)
  • Treaty for the Establishment of the East African Community Article 34
  • Treaty for the Establishment of the East African Community Article 126
  • Treaty for the Establishment of the East African Community Article 150
  • Treaty for the Establishment of the East African Community Article 151
  • East African Community Customs Union Protocol Article 24
  • East African Community Common Market Protocol Article 54
  • Vienna Convention on the Law of Treaties Article 31

Cases cited (12)

  • Anyang' Nyongo and Others v Attorney General of Kenya and Others (EACJ Reference No. 1 of 2006)
  • East African Law Society and Others v Attorney General of Kenya (EACJ Reference No. 3 of 2007)
  • Costa v ENEL [1964] ECR 585
  • Sitenda Sebalu v Secretary General of the EAC (EACJ Reference No. 1 of 2010)
  • Attorney General of Kenya v Independent Medical Legal Unit (EACJ Appeal No. 1 of 2011)
  • Attorney General of Tanzania v African Network for Animal Welfare (EACJ Appeal No. 3 of 2011)
  • R v Kent Justices ex parte Lye [1967] 2 QB 153
  • Union Transport Plc v Continental Lines SA [1992] 1 WLR 15
  • Christopher Mtikila v Attorney General of Tanzania (EACJ Reference No. 1 of 2008)
  • Modern Holdings (EA) Ltd v Kenya Ports Authority (EACJ Reference No. 1 of 2008)
  • East African Law Society v Secretary General of the EAC (EACJ Reference No. 1 of 2011)
  • Oils Platforms case of the ICJ 1993/6- Iran

Full judgment

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East African Law Centre For Trade Policy And Law v Secretary General of The East African Community (Reference 9 of 2012) [2013] EACJ 47 (9 May 2013)
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.