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Kahoho v Secretary General of East African Community (Reference 1 of 2012)

East African Court of Justice · [2013] EACJ 9 · 2013 Reference Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference under Article 30(1) of the Treaty for the Establishment of the East African Community challenging decisions of the 13th EAC Summit
Decision
Reference dismissed with no order as to costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that the 13th EAC Summit did not breach the Treaty by approving the Protocol on Immunities and Privileges or by mandating the Secretariat to undertake functions relating to Political Federation. Article 131 permits Protocols in areas of co-operation not expressly enumerated in Articles 74-130. The Secretariat's mandate under Article 71 includes implementing Summit directives and conducting technical work. The process towards Political Federation is not the exclusive preserve of the Council; the Secretariat may contribute under Summit or Council direction. Reference dismissed.

Outcome

Reference dismissed with no order as to costs

Facts

Timothy Alvin Kahoho, a Tanzanian journalist, challenged two decisions of the 13th EAC Summit issued on 30 November 2011. First, the Summit approved a Protocol on Immunities and Privileges for the EAC, its organs and institutions. Second, the Summit mandated the Secretariat to produce a roadmap for strengthening institutions critical to the Customs Union, Common Market and Monetary Union, formulate an action plan for operationalising recommendations of a Team of Experts, and propose an action plan and draft model for the structure of the East African Political Federation. The Applicant argued these decisions breached Articles 6, 7, 73, 123(6), 138 and 151 of the Treaty. He contended that immunities and privileges are not areas of co-operation under Article 151, that only the Council (not the Secretariat) may undertake the process towards Political Federation under Article 123(6), and that Protocols may only be concluded in areas of co-operation expressly enumerated in the Treaty.

Issues

  1. Whether the 13th Summit decision approving the Protocol on Immunities and Privileges contravened Articles 73, 138 and 151 of the Treaty.
  2. Whether the 13th Summit decision to mandate the Secretariat to undertake functions relating to Political Federation was in contravention of Articles 6, 7 and 123(6) of the Treaty.
  3. Whether the process towards the establishment of a Political Federation is an exclusive preserve of the Council to which the Secretariat cannot contribute.
  4. Whether the conclusion of Protocols is only permissible where the Treaty specifically provides for areas of co-operation.
  5. Whether the Applicant is entitled to the prayers sought.

Orders

  • Reference dismissed.
  • Each party to bear its own costs.

Rules and key headnotes

Treaty Interpretation — Vienna Convention — Good Faith and Ordinary Meaning
A treaty among sovereign states is subject to international law on interpretation of treaties, principally the Vienna Convention on the Law of Treaties. Under Article 31(1) of the Vienna Convention, a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
Treaty Interpretation — Complementary Provisions — Holistic Reading
Treaty provisions must be read as complementary to each other and not as independent and in conflict with one another. To argue otherwise would lead to a legal absurdity and negate the principle that a treaty must be interpreted as a whole and not selectively to suit a set purpose.
EAC Treaty — Areas of Co-operation — Article 131 — Protocols in Other Fields
Article 131 of the EAC Treaty permits Partner States to consult and harmonise policies in fields not expressly enumerated in Articles 74-130 where necessary or desirable for the efficient and harmonious functioning and development of the Community. Article 131 was enacted to reduce frequent amendments of the Treaty whenever a new area of co-operation arises which cannot otherwise be managed outside existing provisions. A Protocol may be concluded under Article 151 in respect of such other fields.
EAC Treaty — Protocol on Immunities and Privileges — Articles 73, 131, 138 and 151
The conclusion of a Protocol on Immunities and Privileges for the EAC, its organs and institutions is permissible under Articles 73, 131, 138 and 151 of the Treaty. The Protocol serves to harmonise and create a common platform to guide the status, immunities and privileges in Host Agreements signed by the Secretary General with Partner States. The execution of an Agreement under Article 138(2) is not an ouster of the provision for conclusion of a Protocol under Article 151 where the situation so demands.
EAC Treaty — Secretariat Functions — Article 71 — Implementation of Summit Directives
The Secretariat's functions under Article 71 of the Treaty include initiating studies and research related to the implementation of programmes for achieving the objectives of the Community, undertaking investigations and verification of matters affecting the Community, and implementing decisions of the Summit and Council. The Summit may give general directions and impetus to the development and achievement of the objectives of the Community under Article 11(1). A mandate given by the Summit to the Secretariat to undertake technical work, including proposing action plans and draft models for consideration by the Summit, falls within the Secretariat's mandate under Article 71 and does not breach the Treaty.
EAC Treaty — Political Federation — Article 123(6) — Role of Secretariat and Council
Article 123(6) of the Treaty provides that the Summit shall initiate the process towards the establishment of a Political Federation by directing the Council to undertake the process. The process towards a Political Federation is not the exclusive preserve of the Council. The Secretariat may contribute to the process under direction from the Summit or Council. The Council may give directions to the Secretariat under Article 14(3) in any matter it deems fit, including the process leading to a Political Federation. Of all the Organs of the EAC, only the Secretariat is clothed with the mandate and technical expertise to implement the integration agenda as may be directed by Council or Summit.
EAC Treaty — People-Centred Integration — Article 7(1)(a) — Citizen Participation
One of the operational principles of the EAC under Article 7(1)(a) is people-centred and market-driven co-operation. If the people of East Africa are at the centre of the entire integration process, their input is not just necessary but imperative. The process leading to a Political Federation must involve consultation with citizens of the Partner States.

Legislation cited (19)

  • 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 8
  • Treaty for the Establishment of the East African Community Article 9
  • Treaty for the Establishment of the East African Community Article 11
  • Treaty for the Establishment of the East African Community Article 14
  • Treaty for the Establishment of the East African Community Article 23(1)
  • Treaty for the Establishment of the East African Community Article 23(3)
  • Treaty for the Establishment of the East African Community Article 27(1)
  • Treaty for the Establishment of the East African Community Article 30(1)
  • Treaty for the Establishment of the East African Community Article 30(2)
  • Treaty for the Establishment of the East African Community Article 71
  • Treaty for the Establishment of the East African Community Article 73
  • Treaty for the Establishment of the East African Community Article 123(6)
  • Treaty for the Establishment of the East African Community Article 131
  • Treaty for the Establishment of the East African Community Article 138
  • Treaty for the Establishment of the East African Community Article 151
  • East African Court of Justice Rules of Procedure 2010 Rule 24
  • Vienna Convention on the Law of Treaties Article 31(1)

Cases cited (1)

  • Modern Holdings (E.A) Limited v Kenya Ports Authority (EACJ Reference No. 1 of 2008)

Full judgment

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

Kahoho v Secretary General of East African Community (Reference 1 of 2012) [2013] EACJ 9 (17 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.