Wakilii

Katabazi and Others v Secretary General of East African Community and Another (Reference No. 1 of 2007)

East African Court of Justice · [2007] EACJ 3 · 2007 Reference Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to the East African Court of Justice alleging infringement of the Treaty for the Establishment of the East African Community
Decision
Reference partly allowed with costs against the Attorney General of Uganda; no order against the Secretary General of the East African Community

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that armed security agents surrounding the High Court of Uganda to prevent execution of a bail order, re-arresting the applicants, and refusing to release them despite court orders violated the rule of law as enshrined in Articles 6(d), 7(2) and 8(1)(c) of the Treaty for the Establishment of the East African Community. The Court found that the Secretary General can investigate on his own initiative under Article 71(1)(d) but requires knowledge of the matter before acting under Article 29.

Outcome

Reference partly allowed with costs against the Attorney General of Uganda; no order against the Secretary General of the East African Community

Facts

The applicants were charged with treason and misprision of treason in 2004 and remanded in custody. On 16 November 2006, the High Court of Uganda granted bail to fourteen of them. Immediately thereafter, armed security personnel surrounded the High Court, interfered with preparation of bail documents, re-arrested the fourteen applicants and returned them to jail. On 24 November 2006, all applicants were charged before a military General Court Martial with unlawful possession of firearms and terrorism based on the same facts. The Uganda Law Society challenged these actions in the Constitutional Court, which ruled the interference unconstitutional. Despite this ruling, the applicants remained detained, prompting this Reference to the East African Court of Justice alleging infringement of the Treaty for the Establishment of the East African Community.

Issues

  1. Whether the invasion of the High Court premises by armed agents of the Second Respondent, the re-arrest of the Complainants granted bail by the High Court and their incarceration in prison constitute infringement of the Treaty for the Establishment of the East African Community.
  2. Whether the First Respondent can on his own initiative investigate matters falling under the ambit of the provisions of the Treaty.

Orders

  • Reference succeeds in part.
  • Costs awarded to the Claimants against the 2nd Respondent.

Rules and key headnotes

Rule of Law — Independence of the Judiciary — Interference with Court Orders
The intervention by armed security agents to prevent execution of a lawful court order violates the principle of the rule of law and the independence of the judiciary, which is a cornerstone of the rule of law.
Preliminary Objections — Points of Law versus Points of Fact
A preliminary objection must consist of a point of law which has been pleaded or which arises by clear implication out of pleadings. It cannot be raised if any fact has to be ascertained. Whether a party had knowledge of certain events is a question of fact, not law, and cannot form the basis of a preliminary objection.
Rule of Law — Definition and Scope
The rule of law is the principle that no one is above the law and that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with due process. It is a safeguard against arbitrary governance and requires that both rulers and governed are equally subject to the same law.
Jurisdiction — East African Court of Justice — Human Rights Matters
The East African Court of Justice does not have jurisdiction to adjudicate on disputes concerning violation of human rights per se under Article 27 of the Treaty, as such jurisdiction requires a determination of the Council and conclusion of a Protocol. However, the Court will not abdicate from exercising its jurisdiction of interpretation under Article 27(1) merely because a reference includes allegations of human rights violations.
Res Judicata — Requirements for Application
For the doctrine of res judicata to apply, three conditions must be met: the matter must be directly and substantially in issue in both suits; the parties must be the same or parties under whom any of them claim litigating under the same title; and the matter must have been finally decided in the previous suit. All three conditions must be present.
Secretary General Powers — Investigation under Treaty Article 71(1)(d)
The Secretary General of the East African Community can on his own initiative investigate matters falling under the ambit of the provisions of the Treaty under Article 71(1)(d). However, without knowledge of the matter, the Secretary General cannot be expected to conduct an investigation and come up with a report under Article 29(1).
Executive Power — Security Justifications — Limits on Executive Action
While the exclusive responsibility of the executive to ensure state security must be respected, the role of the judiciary to provide a check on the exercise of that responsibility in order to protect the rule of law cannot be gainsaid. Security justifications do not permit the executive to operate without judicial checks.

Legislation cited (18)

  • Treaty for the Establishment of the East African Community Article 5
  • Treaty for the Establishment of the East African Community Article 6
  • Treaty for the Establishment of the East African Community Article 6(d)
  • Treaty for the Establishment of the East African Community Article 7
  • Treaty for the Establishment of the East African Community Article 7(2)
  • Treaty for the Establishment of the East African Community Article 8
  • Treaty for the Establishment of the East African Community Article 8(1)(c)
  • Treaty for the Establishment of the East African Community Article 23
  • Treaty for the Establishment of the East African Community Article 27
  • Treaty for the Establishment of the East African Community Article 27(1)
  • Treaty for the Establishment of the East African Community Article 27(2)
  • Treaty for the Establishment of the East African Community Article 29
  • Treaty for the Establishment of the East African Community Article 29(1)
  • Treaty for the Establishment of the East African Community Article 71
  • Treaty for the Establishment of the East African Community Article 71(1)(d)
  • Uganda People's Defence Forces Act No. 7 of 2005
  • African Charter on Human and Peoples' Rights Article 26
  • East African Court of Justice Rules of Procedure Rule 52

Cases cited (7)

  • The Republic v Gachoka and Another [1999] 1 EA 254
  • Bennett v Horseferry Road Magistrates' Court and Another [1993] 2 All ER 474
  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696
  • Etiennes Hotel v National Housing Corporation (Civil Reference No. 32 of 2005)
  • Connelly v DPP [1964] 2 All ER 401
  • Constitutional Rights Project and Civil Liberties v. Nigeria, Communication 143/95, 150/96 - AHG/222 (XXXVI) Annex V p 63
  • The Uganda Law Society v Attorney General of Uganda (Constitutional Petition No. 18 of 2005)

Full judgment

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

Katabazi and Others v Secretary General of East African Community and Another (Reference No. 1 of 2007) [2007] EACJ 3 (11 November 2007)
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.