Kiwanuka v Attorney General of the Republic of Uganda (Appeal No. 7 of 2020)
East African Court of Justice
· [2025] EACJ 18
· 2025
Appeal Dismissed
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Holding
The East African Court of Justice Appellate Division dismissed an appeal challenging the First Instance Division's dismissal of a Reference alleging Treaty violations in Uganda's constitutional amendment process. The Court held that no procedural irregularities were committed by the Trial Court; that claims relating to the enactment process were correctly held time-barred under Article 30(2) of the Treaty; that the Trial Court correctly upheld the processes of the Supreme Court of Uganda; and that the Appellant failed to prove Treaty violations. Each party was ordered to bear its own costs.
Outcome
Appeal dismissed and judgment of the First Instance Division affirmed
Facts
The Appellant, a Ugandan citizen and public interest litigant, challenged Uganda's Constitution (Amendment) Act 2018, which removed the presidential age limit. After the Constitutional Court and Supreme Court of Uganda upheld the amendment, the Appellant filed a Reference before the East African Court of Justice alleging violations of the EAC Treaty. The First Instance Division dismissed the Reference, holding that claims relating to the enactment process were time-barred under Article 30(2) of the Treaty and that the Appellant failed to prove Treaty violations by the Supreme Court. The Appellant appealed, alleging procedural irregularities, misinterpretation of the limitation period, and errors in upholding the Supreme Court's decision.
Issues
- Whether the Trial Court committed procedural irregularities in the hearing and determination of Reference No. 6 of 2019.
- Whether the Trial Court erred in law in holding that the process leading to the enactment of the Constitutional Amendment Act of 2018, the proceedings and decisions in Constitutional Petition No. 49 of 2017 were time barred.
- Whether the Trial Court erred in law in holding that the process and decision in Constitutional Appeal No. 2 of 2018 was in accordance with the laws of Uganda and Articles 6(d) and 7(2) of the Treaty.
- What remedies are available to the parties.
Orders
- The Appeal is dismissed.
- Each party shall bear its own costs of this Appeal.
Rules and key headnotes
Appellate Jurisdiction — Grounds of Appeal — Procedural Irregularity
The jurisdiction of the Appellate Division of the East African Court of Justice is limited to three specific grounds: points of law, lack of jurisdiction, or procedural irregularity. Procedural irregularities are irregularities that attach to the conduct of a proceeding or trial, comprising such irregularities as inadmissibility of documents or witnesses, denying a party the opportunity to be heard, and failure to notify or serve in time. Not every alleged procedural lapse warrants appellate interference; only those that go to the root of the fairness of the proceedings justify reversal.
Limitation of Actions — Article 30(2) EAC Treaty — Continuing Breach Theory
Article 30(2) of the EAC Treaty requires a Reference to be instituted within two months of the date of the action, decision, omission or incident complained of. The limitation period begins to run from the date the act complained of was first effected, not when it ends. The doctrine of continuing breach has no established place in the Court's jurisprudence; each act or decision of a Partner State is independently challengeable, and treating multiple acts as a single continuing event would nullify the purpose of the limitation provision.
Judgment — Determination of Pleaded Matters — Time-Bar as Judicial Determination
A finding that certain claims are time-barred is itself a judicial determination of those claims and cannot be construed as a refusal to determine them. A court is not obligated to address every peripheral argument, so long as the substance of the case is determined. Declaring a matter time-barred is a decision on admissibility, which is as much a part of the judicial function as a decision on the merits.
Abuse of Process — Natural Justice — Audi Alteram Partem
Where a respondent raises the issue of abuse of process in its affidavit in reply and written submissions, and the applicant responds in detail, the trial court does not violate the rule of natural justice by making findings on abuse of process. The court does not venture into unpleaded territory when it comments on conduct that has been squarely raised by the parties.
Judicial Review — Standard of Proof — Allegations Against Apex Court
Allegations impugning the judicial integrity of a Partner State's apex court as a violation of the EAC Treaty must be proved by cogent and credible evidence, not bare assertions. The burden of proof rests upon the party asserting the alleged Treaty violations. The procedural decisions of a national Supreme Court relating to extensions of time, case management and correction of accidental errors fall within its jurisdiction and discretion and cannot per se constitute a violation of the Treaty absent demonstration that they amounted to a denial of justice.
Judicial Bias — Test of Reasonable Apprehension
The test of judicial bias is an objective test requiring the court to satisfy itself that the circumstances relied upon give rise to reasonable apprehension in the mind of a reasonable, fair-minded and informed member of the public that the judge will not be impartial. Allegations of judicial bias based on bare assertions and surmises, unsupported by acceptable evidence, do not meet this test.
Remedies — Trial De Novo — Threshold for Grant
A trial de novo is a far-reaching remedy granted only where procedural defects in the original proceedings are so fundamental as to undermine the very integrity of the hearing. Where the record shows that the trial court heard the parties, engaged with the issues presented, and rendered reasoned decisions, and the appellant's complaints amount to disagreement with the weight assigned to arguments rather than demonstration of fundamental procedural flaw, the threshold for a de nova hearing has not been met.
Legislation cited (11)
- Treaty for the Establishment of the East African Community Article 6(d)
- Treaty for the Establishment of the East African Community Article 7(2)
- Treaty for the Establishment of the East African Community Article 8(1)(c)
- Treaty for the Establishment of the East African Community Article 30(2)
- Treaty for the Establishment of the East African Community Article 35A(1)
- Treaty for the Establishment of the East African Community Article 123(3)(c)
- East African Court of Justice Rules of Procedure 2019 Rule 79(5)
- East African Court of Justice Rules of Procedure 2019 Rule 86
- East African Court of Justice Rules of Procedure 2019 Rule 97
- East African Court of Justice Rules of Procedure 2019 Rule 127(1)
- Constitution (Amendment) Act 2018 (Uganda)
Cases cited (22)
- Godfrey Magezi v Attorney General of the Republic of Uganda (Appeal No. 3 of 2015)
- Mary Ariviza & another v Attorney General of the Republic of Kenya (Appeal No. 3 of 2012)
- Secretary General of the East African Community v Rt. Hon. Margaret Zziwa (Appeal No. 7 of 2015)
- Attorney General of Republic of Kenya v Independent Medical Legal Unit (Appeal No. 1 of 2011)
- Ismael Dabule & 1004 Others v Attorney General of the Republic of Uganda (Appeal No. 1 of 2018)
- Ebenezer Nwokoro & others v. Titus Onuma & Another, Nigeria Supreme Court Case No. 213 of 1988
- Union Trade Centre Ltd v Attorney General of the Republic of Rwanda (Appeal No. 1 of 2015)
- Henry Kyarimpa v Attorney General of the Republic of Uganda (Appeal No. 6 of 2014)
- Attorney General of United Republic of Tanzania v African Network for Animal Welfare (Appeal No. 3 of 2011)
- Angella Amudo v Secretary General of the East African Community (Appeal No. 4 of 2014)
- Attorney General of the Republic of Uganda & another v Omar Awadh & 6 others (Appeal No. 2 of 2012)
- Union Trade Centre v Attorney General of the Republic of Rwanda (Reference No. 10 of 2013)
- Ssemwogerere & another v Attorney General (Constitutional Petition No. 3 of 1999)
- Bosnia and Herzegovina v. Serbia and Montenegro, Judgment, ICJ Reports 2007
- Sitenda Sebalu v Secretary General of the EAC & others (Reference No. 1 of 2010)
- Attorney General of the Republic of Kenya v Prof. Peter Anyang Nyong'o & 10 others (Application No. 5 of 2007)
- Attorney General of the Republic of Uganda v Media Legal Defense Initiative & 19 others (Appeal No. 3 of 2016)
- Attorney General of the United Republic of Tanzania v Africa Network for Animal Welfare (Appeal No. 3 of 2014)
- Attorney General of the Republic of Burundi v. The Secretary General of the EAC & Another
- Male H. Mabirizi K. Kiwanuka v Attorney General of the Republic of Uganda (Reference No. 6 of 2019)
- Male Mabirizi Kiwanuka v Attorney General of the Republic of Uganda (Constitutional Petition No. 49 of 2017)
- Male Mabirizi Kiwanuka v Attorney General of the Republic of Uganda (Constitutional Appeal No. 2 of 2018)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.
Kiwanuka v Attorney General of the Republic of Uganda (Appeal No. 7 of 2020) [2025] EACJ 18 (24 November 2025)
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