East African Law Society v Secretary General of the East African Community (Reference No.1 of 2020)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Court held that the 39th Ordinary Meeting of the Council of Ministers was properly constituted and did not lack quorum despite the absence of some Attorneys General. Quorum is governed by the Rules of Procedure requiring representation from all Partner States by designated Ministers, not mandatory attendance of all Attorneys General. The resolutions of the meeting were valid. The Ad hoc EAC Service Commission was lawfully established by the Council under Article 14 and was not an institution of the Community requiring Summit approval under Article 9(2). Reference dismissed.

Outcome

Reference dismissed as unmerited

Facts

The East African Law Society challenged the legality of the 39th Ordinary Meeting of the Council of Ministers held on 28 November 2019, alleging it lacked quorum because Attorneys General from most Partner States were absent. The Applicant contended that following amendments to Article 13 of the Treaty, Attorneys General became mandatory members whose presence was required for quorum. The meeting made several resolutions including extending the mandate of the Ad hoc EAC Service Commission established in 2014. The Applicant argued this extension was indefinite and that the Commission had been improperly empowered as an institution of the Community without Summit approval under Article 9(2). Evidence showed the meeting was attended by Ministers from all Partner States, the Attorney General of Burundi, and representatives from Attorneys General offices of Uganda and Tanzania.

Issues

1. Whether the 39th meeting of the Council lacked quorum because of the absence of some Attorneys General of the Partner States thus breaching Article 13 of the Treaty
2. Whether the resolutions, directives and orders flowing from the 39th Ordinary Meeting of the Council are valid
3. Whether the Council of Ministers has indefinitely extended the tenure of the Ad hoc EAC Service Commission thereby breaching the Treaty
4. Whether the Ad hoc EAC Service Commission has been empowered as an institution without following the provisions of Article 9(2) of the Treaty
5. Whether the Parties are entitled to the remedies sought

Orders

• Reference dismissed in its entirety.
• Each party to bear their own costs.
• Court advises that the Rules of Procedure of the Council be amended to incorporate the amendments made in Article 13 of the Treaty.

Rules and key headnotes

Legislation cited (28)

• Treaty for the Establishment of the East African Community Article 2
• Treaty for the Establishment of the East African Community Article 6
• Treaty for the Establishment of the East African Community Article 7
• Treaty for the Establishment of the East African Community Article 9(1)
• Treaty for the Establishment of the East African Community Article 9(2)
• Treaty for the Establishment of the East African Community Article 9(3)
• Treaty for the Establishment of the East African Community Article 13
• Treaty for the Establishment of the East African Community Article 13(a)
• Treaty for the Establishment of the East African Community Article 13(c)
• Treaty for the Establishment of the East African Community Article 14
• Treaty for the Establishment of the East African Community Article 14(3)
• Treaty for the Establishment of the East African Community Article 15
• Treaty for the Establishment of the East African Community Article 15(2)
• Treaty for the Establishment of the East African Community Article 16
• Treaty for the Establishment of the East African Community Article 30
• Treaty for the Establishment of the East African Community Article 67
• Treaty for the Establishment of the East African Community Article 69(1)
• Treaty for the Establishment of the East African Community Article 70
• Treaty for the Establishment of the East African Community Article 71(1)(a)
• Treaty for the Establishment of the East African Community Article 71(1)(b)
• Treaty for the Establishment of the East African Community Article 71(1)(d)
• Treaty for the Establishment of the East African Community Article 71(1)(k)
• Treaty for the Establishment of the East African Community Article 71(1)(l)
• Treaty for the Establishment of the East African Community Article 71(1)(m)
• Treaty for the Establishment of the East African Community Article 71(4)
• Rules of Procedure of the Council Rule 2
• Rules of Procedure of the Council Rule 11
• Vienna Convention on the Law of Treaties Article 31

Cases cited (6)

• Calistus Andrew Mwatela & Others v East African Community (EACJ Application No. 1 of 2005)
• East African Law Society & Others v Attorney General of the Republic of Kenya & Others (EACJ Reference No. 3 of 2007)
• Timothy Alvin Kahoho v Secretary General of the East African Community (EACJ Appeal No. 2 of 2013)
• Attorney General of the United Republic of Tanzania v African Network for Animal Welfare (EACJ Appeal No. 3 of 2011)
• Modern Holding (EA) Limited v Kenya Ports Authority (EACJ Reference No. 1 of 2008)
• Pontrilas Investments Ltd v Central Bank of Kenya (EACJ Reference No. 8 of 2017)

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