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East African Law Society v Attorney General of Uganda and Another (Reference 2 of 2011)

East African Court of Justice · [2018] EACJ 81 · 2018 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference filed under Articles 6(d), 7(2), 27, 29, 30, 38 and 71 of the Treaty for the Establishment of the East African Community alleging violation of fundamental rights during walk to work protests in Uganda
Decision
Reference dismissed for insufficient evidence

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice dismissed the Reference alleging that Uganda violated Treaty obligations during walk to work protests. The Court held that the Applicant had locus standi but failed to adduce sufficient admissible evidence to prove the alleged violations. Electronic video evidence was ruled inadmissible because the maker did not testify or swear an affidavit authenticating it. The Court found no liability on the part of the Secretary General who had no prior notice of the alleged violations. Each party was ordered to bear its own costs.

Outcome

Reference dismissed for insufficient evidence

Facts

In April 2011, Ugandan citizens participated in walk to work protests against high costs of fuel and living. The East African Law Society filed a Reference alleging that Uganda's police and military violently suppressed the protests, violating fundamental rights under the Ugandan Constitution, the EAC Treaty, and the African Charter on Human and Peoples Rights. The Applicant alleged that protesters were beaten, tear-gassed, injured, and some killed. The Attorney General of Uganda denied the allegations, stating that law enforcement acted lawfully within constitutional and statutory mandates to maintain order. The Applicant sought to introduce video evidence of the alleged violations but the maker of the video did not testify. The Secretary General of the EAC was also sued for allegedly failing to investigate the violations.

Issues

  1. Whether the 1st Respondent and its agents declared the walk to work protests illegal and prevented them from proceeding.
  2. Whether the 1st Respondent acted lawfully, proportionately and professionally in regulating the movement of persons during the protests.
  3. Whether the 2nd Respondent had personal knowledge of the alleged violations and took appropriate action under Articles 29(1) and 71(1)(d) of the Treaty.
  4. Whether on a proper construction of Articles 29(1) and 71(1)(d) of the Treaty, there is a cause of action disclosed against the 2nd Respondent.
  5. Whether the alleged acts or omissions of the Respondents amounted to violation of the Treaty.
  6. Whether the Applicant has locus standi to bring the Reference.
  7. Whether the affidavit of James Aggrey Mwamu and the accompanying electronic evidence is admissible.
  8. Whether the Applicant is entitled to the declarations and remedies sought.

Orders

  • The Reference is dismissed.
  • Each party shall bear its own costs.

Rules and key headnotes

Evidence — Electronic Evidence — Admissibility — Authentication Requirements
For electronic evidence such as a video recording to be admissible, the maker of the recording must authenticate it by affidavit or testimony. Where electronic evidence is annexed to an affidavit sworn by a person who is not the maker and the maker does not testify or swear an affidavit, the evidence is inadmissible regardless of its relevance.
Evidence — Electronic Evidence — Standards for Admissibility
Admissibility of electronically generated evidence depends on: (a) the manner in which the evidence was obtained, preserved and produced; (b) the relevance of the evidence; (c) the reliability of the evidence; (d) whether it would prejudice the fair hearing of the matter; and (e) whether there is an element of public interest in it.
Human Rights — Freedom of Assembly — Right to Peaceful Protest — Treaty Obligations
Articles 6(d) and 7(2) of the Treaty for the Establishment of the East African Community, which require Partner States to adhere to principles of good governance, the rule of law, and the recognition, promotion and protection of human rights, are justiciable and not merely aspirational. Violation of a Partner State's own constitutional guarantees of the right to peaceful assembly may constitute a breach of Treaty obligations.
Administrative Law — Secretary General of EAC — Duty to Investigate — Notice Requirement
The Secretary General of the East African Community cannot be held liable for failure to investigate alleged Treaty violations under Articles 29(1) and 71(1)(d) of the Treaty where he had no prior notice of the alleged violations before a Reference was filed. Notoriety of events is not sufficient to impose a duty to investigate without a specific complaint being brought to the Secretary General's attention.
Constitutional Law — Locus Standi — Public Interest Litigation — Bar Associations
A bar association such as the East African Law Society, which has a duty to promote adherence to the rule of law, has locus standi under Article 30(1) of the EAC Treaty to file a Reference alleging violations of the Treaty by a Partner State, as it is genuinely interested in the observance of Treaty obligations.
Evidence — Burden of Proof — Insufficiency of Bare Allegations
It is not enough to allege a fact, however notorious one may consider it to be, and fail to bring forth credible, authentic, reliable and admissible evidence to support such an allegation. Where an applicant alleges that protesters were beaten, maimed and killed, the identities of affected persons, medical records of injuries, and death certificates are necessary to prove the allegations on a balance of probability.
Civil Procedure — Costs — Public Interest Litigation — Discretion to Depart from Costs Follow Event Rule
Although costs ordinarily follow the event under Rule 111 of the East African Court of Justice Rules of Procedure, where an applicant files a Reference in the wider interests of the rule of law within the East African Community, the Court may exercise its discretion to order each party to bear its own costs rather than punish the unsuccessful applicant with costs, so as not to fetter the exercise of its public-spirited mandate.

Legislation cited (8)

  • Treaty for the Establishment of the East African Community Articles 6(d), 7(2), 27, 29, 30, 38, 71
  • Constitution of the Republic of Uganda 1995 Articles 21, 22, 24, 29, 43
  • African Charter on Human and Peoples Rights Articles 3, 4, 5, 6, 9, 10, 11, 28
  • East African Court of Justice Rules of Procedure 2013 Rules 1(2), 12, 21, 24, 38, 46, 48, 50, 56, 63, 111
  • Police Act of Uganda s.32(2)
  • Evidence Act Cap 6 of Uganda ss.58, 64, 68, 113
  • Evidence Act Cap 80 of Kenya s.106(8), s.78A
  • Electronic Transactions Act of Uganda ss.5, 7, 8

Cases cited (16)

  • Muwanga Kivumbi v Attorney General (Constitutional Petition No. 9 of 2005)
  • East Africa Law Society & 4 Others v Attorney General of Uganda & Others (EACJ Reference No. 2 of 2007)
  • James Katabazi and 21 Others v Secretary General EAC and Another (EACJ Reference No. 1 of 2007)
  • East Africa Law Society v Attorney General of Burundi and Secretary General EAC (EACJ Reference No. 1 of 2014)
  • Sitenda Sebalu v Secretary General of the EAC & 3 Others (EACJ Reference No. 1 of 2010)
  • Union Trade Centre Limited v Attorney General of Rwanda (EACJ Appeal No. 1 of 2015)
  • Attorney General of Rwanda v Plaxeda Rugumba (EACJ Reference No. 8 of 2010)
  • Samuel Mukira Mohochi v Attorney General of Uganda (EACJ Reference No. 5 of 2011)
  • Onyango-Obbo & Another v Attorney General (Appeal No. 2 of 2002)
  • Prof. Anyang' Nyong'o and 5 Others v Attorney General of Kenya (EACJ Reference No. 1 of 2006)
  • R v Maqsud Ali & Ashiq Hussain (1965) 2 All ER 464
  • US v Briscoe 896 F.2d 1476 (7th Circuit 1990)
  • Khan v United Kingdom (Application No. 33394/97)
  • Prosecutor v Brdanin and Talic (Case No. IT 99-36-T)
  • Republic v Gachoka & Another
  • Bennet v Horseferry Road Magistrate's Court & Another

Full judgment

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

East African Law Society v Attorney General of Uganda and Another (Reference 2 of 2011) [2018] EACJ 81 (28 March 2018)
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.