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East African Law Society and Others v A.G. of Republic of Kenya and Others (Reference 3 of 2007)

East African Court of Justice · [2008] EACJ 1 · 2008 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to the East African Court of Justice challenging the legality of amendments to the Treaty for the Establishment of the East African Community
Decision
Application partly allowed. Court found Treaty infringements but declined to invalidate amendments, applying prospective annulment doctrine. Costs awarded to applicants.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice held that the reference challenging Treaty amendments was properly before the Court under Article 30. The amendment process infringed the Treaty by failing to involve the people of East Africa in consultation, contrary to the people-centered cooperation principle in Articles 5 and 7. The amendment to Article 26 expanding grounds for removal of judges infringed Article 38(2) by being capable of unduly influencing pending proceedings. However, the Court declined to invalidate the amendments, applying the doctrine of prospective annulment, and ordered that future amendments must involve meaningful consultation with the people.

Outcome

Application partly allowed. Court found Treaty infringements but declined to invalidate amendments, applying prospective annulment doctrine. Costs awarded to applicants.

Facts

On 14 December 2006, the Summit of East African Community Heads of State adopted amendments to the Treaty for the Establishment of the East African Community. The amendments restructured the Court into two divisions and expanded grounds for removal of judges. The amendments were initiated following the Court's interim order in the Anyang' Nyong'o case which suspended nine persons from participating in the East African Legislative Assembly. The amendment process from initiation to ratification took only days. The Secretary General communicated proposed amendments to Partner States on 9 December 2006 requesting comments by 11 December. All three Partner States responded within 2-4 days. The Summit adopted the amendments on 14 December 2006. Kenya ratified on 8 January 2007, Uganda on 26 February 2007, and Tanzania on 19 March 2007. The four applicant law societies challenged the legality of the amendment process.

Issues

  1. Whether the reference is properly before the Court
  2. Whether the process of amending the Treaty was proper and lawful
  3. Whether the said amendments were carried out in good faith
  4. Whether the amendments as carried out can be stopped
  5. Whether the amendments will strengthen the Community

Orders

  • Reference held to be properly before the Court.
  • Lack of people's participation in the amendment process held to constitute infringement of Articles 5(3)(g) and 7(1)(a) of the Treaty.
  • Amendment to Article 26 held to constitute infringement of Article 38(2) of the Treaty.
  • Declaration that the entire process of amendment is unlawful and of no legal effect declined.
  • Doctrine of prospective annulment applied — holding on requirement of people's involvement to have prospective application only.
  • Respondents ordered to jointly and severally bear the applicants' costs.

Rules and key headnotes

Treaty Amendment — Locus Standi — Right of Legal Persons to Challenge Sovereign Acts
Where a treaty vests residents of Partner States with the right to challenge infringement of treaty provisions under Article 30, legal persons may bring a reference questioning whether Partner States complied with prescribed treaty amendment procedures, notwithstanding that treaty-making is ordinarily a sovereign function. The Partner States, by binding themselves to follow a specified procedure for amendments, agreed to cede a degree of their respective sovereignty.
Treaty Interpretation — Scope of Judicial Review — Acts of Community Organs
Article 30 of the Treaty, which empowers residents to challenge the legality of any act, regulation, directive, decision or action of a Partner State or institution of the Community, extends to acts of organs of the Community. A restrictive interpretation excluding infringement by organs would defeat the purpose of ensuring compliance with treaty provisions. Where an alleged infringement arises from the totality of a treaty amendment process carried out by Partner States acting together through Community organs, the infringement is by the Partner States and is justitiable under Article 30.
Treaty Interpretation — Time Limits — Mandatory Periods for Consultation
Where a treaty provision requires Partner States wishing to comment on proposed amendments to do so within 90 days, and directs the Secretary General to submit proposals with comments to the Summit after expiration of that period, the provision does not require the Secretary General to await the full 90 days where all Partner States have submitted comments earlier. The purpose of the 90-day period is to limit the time for commenting, not to prescribe a mandatory period for unspecified consultations. The correct construction is that submission must occur not later than expiry of the 90 days.
Treaty Amendment — People-Centered Cooperation — Requirement of Consultation
A treaty establishing a community on the principle of people-centered cooperation, which recites in its preamble that lack of participation by private sector and civil society contributed to collapse of the previous community, and which empowers residents to enforce treaty rights through the courts, impliedly requires consultation with the people in the treaty amendment process. Subsequent practice in applying the treaty, including extensive consultations on protocols and major proposals, establishes agreement among parties that the people shall be consulted when seeking to apply or alter treaty provisions. Failure to carry out such consultation constitutes an infringement of the treaty.
Judicial Independence — Interference with Pending Proceedings
Where a court has granted an interim order in pending proceedings, and Partner States respond by amending the treaty to expand grounds for removal of judges in circumstances capable of unduly influencing the judges hearing the case, such amendment infringes the treaty obligation to refrain from action which might be detrimental to resolution of a dispute. The test is not whether the amendment actually intimidated judges, but whether it was capable of being detrimental. That it had no effect is credit to judicial independence, not a defence to the infringement.
Remedies — Prospective Annulment — Discretion to Decline Invalidation
Where a court finds that a treaty amendment process infringed treaty provisions, but the infringement was not conscious, is unlikely to recur after clarification of the law, had no significant effect, and not all resultant amendments are incompatible with treaty objectives, the court may invoke the doctrine of prospective annulment and decline to invalidate the amendments. The holding on the requirement of people's involvement shall have prospective application only.
Treaty Interpretation — Vienna Convention — Good Faith and Context
A treaty must be interpreted in good faith in accordance with the ordinary meaning of its terms in their context and in light of its object and purpose. Context includes the preamble and any subsequent practice in application of the treaty which establishes agreement of parties regarding its interpretation. Where interpretation applying ordinary meaning leads to manifestly absurd or unreasonable results, recourse may be had to supplementary means of interpretation.

Legislation cited (15)

  • Treaty for the Establishment of the East African Community Article 5
  • Treaty for the Establishment of the East African Community Article 7
  • Treaty for the Establishment of the East African Community Article 8
  • Treaty for the Establishment of the East African Community Article 23
  • Treaty for the Establishment of the East African Community Article 26
  • Treaty for the Establishment of the East African Community Article 27
  • Treaty for the Establishment of the East African Community Article 28
  • Treaty for the Establishment of the East African Community Article 29
  • Treaty for the Establishment of the East African Community Article 30
  • Treaty for the Establishment of the East African Community Article 38
  • Treaty for the Establishment of the East African Community Article 150
  • Vienna Convention on the Law of Treaties Article 31
  • Vienna Convention on the Law of Treaties Article 32
  • Vienna Convention on the Law of Treaties Article 39
  • Vienna Convention on the Law of Treaties Article 40

Cases cited (9)

  • Prof. Peter Anyang' Nyong'o and 10 Others v Attorney General of Kenya and 5 Others (Reference No. 1 of 2006)
  • Callist Mwatela and Others v Secretary General of the EAC (Reference No. 1 of 2005)
  • Alida Singh vs. Vanel Singh (1956) RD-SC 83
  • Jaramogi Oginga Odinga and others vs. Zacherus Chesoni Application No.602 of 1992 (K)
  • David Wakairu Murathe vs. Samuel Macharia Civil Appeal No.171 of 1998 (K)
  • Benito Ang vs. Judge R.G. Quilala and others: [A.M. No. MTJ-03-1476 February 4, 2003]
  • Barcelona Traction, Light and Power Company Limited (Belgium vs. Spain) 2nd Phase (1970) I.C.J. Reports
  • Tacna-Arica Question, In the Matter of Arbitration between the Republic of Chile and the Republic of Peru (UN Reports of International Arbitral Awards, 2006, Vol. II 921-958)
  • Anyang' Nyong'o and 10 others vs. Attorney General and another, High Court Case No. 49 of 2007

Full judgment

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East African Law Society and Others v A.G. of Republic of Kenya and Others (Reference 3 of 2007) [2008] EACJ 1 (9 September 2008)
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.