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East African Law Society v Secretary General of the East African Community

East African Court of Justice · [2013] EACJ 147 · 2013 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference brought under the Treaty for the Establishment of the East African Community challenging provisions of the Customs Union Protocol and Common Market Protocol as inconsistent with the Treaty
Decision
Reference partly allowed — Court declared it retains jurisdiction over interpretation of the Protocols but declined to strike down the impugned provisions

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 it retains jurisdiction to interpret and apply the Treaty for the Establishment of the East African Community, including the Customs Union Protocol and Common Market Protocol which form integral parts of the Treaty. The dispute settlement mechanisms established under the Protocols do not exclude or oust the Court's interpretative jurisdiction. The impugned provisions of the Protocols are not in contravention of the Treaty. Protocols cannot amend the Treaty or oust the Court's jurisdiction except through the formal amendment procedure under Article 150 of the Treaty.

Outcome

Reference partly allowed — Court declared it retains jurisdiction over interpretation of the Protocols but declined to strike down the impugned provisions

Facts

The East African Law Society, a regional lawyers association registered in multiple East African countries, brought a reference challenging provisions of the Customs Union Protocol and Common Market Protocol. The Applicant asserted that Article 24(1)(e) of the Customs Union Protocol and Article 54(2) of the Common Market Protocol were inconsistent with the Treaty for the Establishment of the East African Community because they purported to oust the original jurisdiction of the East African Court of Justice in matters relating to regional integration. The Applicant argued that these provisions granted Partner States' national courts, administrative and legislative authorities precedence over the Court in matters relating to interpretation and application of the Treaty. The Respondent, the Secretary General of the East African Community, challenged the legality of the claims and argued that the Court lacked jurisdiction over disputes arising from the Protocols.

Issues

  1. Whether the Court lacks jurisdiction over disputes arising out of the implementation of the Customs Union and the Common Market Protocol.
  2. Whether the dispute settlement mechanism under the said Protocols excludes/ousts the jurisdiction of the Court over disputes arising thereunder.
  3. Whether Article 24(1) of the Customs Union Protocol and Article 54(2) of the Common Market Protocol contravene Articles 5(1), 8(1)(a), 8(1)(c), 27(1), 33(2), 38(1) and 38(2) of the Treaty.
  4. Whether the Applicant is entitled to the Declarations sought.

Orders

  • The dispute settlement mechanisms created under the Customs Union and Common Market Protocols do not exclude, oust or infringe upon the interpretative jurisdiction of the Court.
  • The impugned provisions of both Protocols are not in contravention of or in contradiction with the relevant provisions of the Treaty.
  • Each party to bear their own costs.

Rules and key headnotes

Treaty Interpretation — Protocols as Integral Parts of Treaty — Effect on Court Jurisdiction
Protocols validly enacted under Article 151(1) of the Treaty for the Establishment of the East African Community become and form an integral part of the Treaty by virtue of Article 151(4), and are therefore subject to interpretation by the East African Court of Justice under its jurisdiction conferred by Article 27 of the Treaty.
Court Jurisdiction — Amendment of Treaty — Protocols Cannot Oust Jurisdiction
A protocol cannot amend the Treaty for the Establishment of the East African Community, directly or by implication, so as to oust the jurisdiction of the East African Court of Justice. The jurisdiction of the Court can only be altered by amendment to the Treaty in accordance with Article 150 thereof.
Dispute Resolution Mechanisms — Alternative Mechanisms Do Not Oust Court Jurisdiction
The establishment of alternative dispute resolution mechanisms under the Customs Union Protocol and Common Market Protocol, including the Committee on Trade Remedies and national judicial, administrative or legislative authorities, does not exclude, oust or infringe upon the interpretative jurisdiction of the East African Court of Justice over matters concerning interpretation and application of the Treaty and its Protocols.
Treaty Interpretation — Supremacy of Court's Interpretative Role
Where an issue of interpretation and application of the Treaty or its Protocols arises in the course of proceedings before alternative dispute resolution mechanisms established under the Protocols, an aggrieved party retains the right to seek authentic interpretation from the East African Court of Justice. The finality of decisions of such mechanisms does not take away this right.
Preliminary Rulings — Duty of National Courts to Refer Interpretation Questions
The duty imposed upon national courts to refer matters to the East African Court of Justice for preliminary ruling under Article 34 of the Treaty continues to exist even when the matter before them is related to the Common Market Protocol. National courts' power to rule on disputes does not include final determination over questions of interpretation of the Protocol.
Supremacy of Court Decisions — Article 33(2) of Treaty
Decisions of the East African Court of Justice on the interpretation and application of the Treaty have precedence over decisions of national courts on similar matters under Article 33(2) of the Treaty. This provision operates as a cure to possible conflicting interpretations of the Treaty by national courts, tribunals or other Community institutions.
Treaty Interpretation — Need for Uniform Interpretation
Uniform interpretation and application of the Treaty for the Establishment of the East African Community are fundamental pillars of the regional integration process. If interpretation and application of the Treaty were outsourced to national judicial, administrative and legislative institutions to interpret as they see fit in accordance with national constitutions and laws, there would be a real possibility of multiple interpretations of similar provisions which would present a real risk to the integration process.

Legislation cited (6)

  • Treaty for the Establishment of the East African Community Articles 1, 2, 3, 4, 5, 6, 7, 8, 23, 27, 30, 31, 32, 33, 34, 37, 38, 67, 75, 76, 126, 150, 151
  • Protocol Establishing the East African Community Customs Union Article 24(1)(e)
  • Protocol for the Establishment of the East African Community Common Market Article 54(2)
  • East African Court of Justice Rules of Procedure Rules 1(2), 24, 53
  • Vienna Convention on the Law of Treaties 1969 Article 31
  • Constitution of Kenya Article 2(6)

Cases cited (13)

  • James Katabazi and 2 Others v Secretary General of the Community and Another (Reference No. 1 of 2007)
  • East African Law Society and Three Others v Attorney General of the Republic of Kenya and Three Others (Reference No. 3 of 2007)
  • Adoui and Comuallie vs- Belgian State 1982 ECR 1665, 1982 (3) CMLRl 631
  • Van Duyn vs Home Office [1975] 3 AII ER 190, [1975] 1 CMLR 1, [1975] WLR 760
  • R v Secretary of State for Transport ex-parte Factortame Ltd. 1998 (1)CMLR 1353, [1999] 2 All ER 640
  • Rv. 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 the United Republic of Tanzania and Another (Reference No. 2 of [year not stated])
  • Modern Holdings (EA) Limited v Kenya Ports Authority (Reference No. 1 of 2008)
  • Hon. Sitenda Sebalu v Secretary General of the East African Community and 3 Others (Reference No. 1 of 2010)
  • The Interpretation of Peace Treaties' Case (1950) ICJ Rep 65
  • Van Gend en Loos [1963] C. M. L. R 105
  • Attorney General of the United Republic of Tanzania v Africa Network for Animal Welfare (Appeal No. 3 of 2011)

Full judgment

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East African Law Society v Secretary General of the East African Community [2013] EACJ 147 (14 February 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.