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Kiwanuka v Attorney General of the Republic of Uganda (Reference No.6 of 2019)

East African Court of Justice · [2020] EACJ 18 · 2020 Reference Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference under Article 30 of the Treaty for the Establishment of the East African Community challenging the legality of Uganda's Constitutional (Amendment) Act of 2018 and the Supreme Court decision upholding it
Decision
Reference dismissed with no finding of Treaty violation by the Supreme Court of Uganda

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 challenges to the enactment process of Uganda's Constitutional (Amendment) Act 2018 and the Constitutional Court proceedings were time-barred under Article 30(2) of the EAC Treaty. However, the challenge to the Supreme Court's decision of 18 April 2019 was filed within time. The Court found no Treaty violation in the Supreme Court's decision, rejecting allegations of judicial bias, conflict of interest, and procedural impropriety. The Court held that the Supreme Court's judgment complied with the rule of law principles under Articles 6(d) and 7(2) of the Treaty.

Outcome

Reference dismissed with no finding of Treaty violation by the Supreme Court of Uganda

Facts

The Applicant challenged Uganda's Constitutional (Amendment) Act 2018, alleging that its enactment process involved violence, non-compliance with parliamentary procedures, and lack of public participation. He filed Constitutional Petition No. 49 of 2017 in the Constitutional Court, which was dismissed. He appealed to the Supreme Court, which upheld the Constitutional Court's decision on 18 April 2019. The Applicant then filed this Reference in the East African Court of Justice on 3 May 2019, alleging that the Supreme Court's decision violated Articles 6(d) and 7(2) of the EAC Treaty by endorsing an illegitimate enactment process and conducting biased proceedings marked by conflict of interest and procedural irregularities.

Issues

  1. Whether the Reference is time barred
  2. Whether the Honourable Court has jurisdiction to determine the Reference
  3. Whether the Reference is Res Judicata
  4. Whether the process leading to the enactment of Constitutional (Amendment) Act, 2018 was consistent with the principles of Articles 6(d), 7(2), 8(1)(c), 30 and 123(3)(c) of the Treaty
  5. Whether the process and decisions in Constitutional Petition No. 49/2017 and Supreme Court Constitutional Appeal No. 2/2018 were consistent with the principles in Articles 6(d) and 7(2) of the Treaty
  6. What remedies are available to the Parties

Orders

  • The challenge to the enactment process of Constitutional (Amendment) Act 2018 is time-barred and dismissed
  • The challenge to the Constitutional Court decision and proceedings is time-barred and dismissed
  • The challenge to the Supreme Court decision is not time-barred
  • The Reference is not res judicata
  • The Court has jurisdiction to determine the Reference
  • No Treaty violation found in the Supreme Court's decision
  • Reference dismissed

Rules and key headnotes

Time Limitation — Article 30(2) EAC Treaty — Computation of Time
Under Article 30(2) of the EAC Treaty, proceedings must be instituted within two months of the action complained of. The starting date is not the day the act ends, but the day it is first effected. Where multiple actions are challenged, each has a distinct limitation period running from when it first occurred.
Res Judicata — Treaty Violations — Domestic Court Proceedings
A Reference challenging Treaty violations by a domestic court is not res judicata merely because the underlying constitutional issues were litigated domestically. The doctrine of res judicata does not bar litigation of Treaty violations that could not have been raised before domestic courts because they had not yet crystallized or because the EACJ has exclusive jurisdiction over Treaty interpretation.
International Responsibility — Domestic Judicial Decisions — EACJ Jurisdiction
The East African Court of Justice has jurisdiction to review decisions of Partner States' domestic courts, including apex courts, to determine the State's international responsibility under the EAC Treaty. Such review is not an appeal but an interrogation of the decision's compliance with Treaty obligations. States can be held internationally responsible for actions of any state organ, including judicial organs.
Rule of Law — Good Governance — Judicial Independence and Impartiality
The rule of law principle under Articles 6(d) and 7(2) of the EAC Treaty encompasses the right to an independent and impartial judiciary. Judicial independence requires that judges decide matters free from external influence or pressure from any quarter. The personal impartiality of a judicial officer is presumed unless there is evidence to the contrary.
Burden of Proof — International Claims — Standard of Proof for Challenges to Apex Court Decisions
In international claims, the applicant bears the legal burden to establish the totality of the case and the evidential burden to prove specific allegations. Claims against a State involving charges of exceptional gravity, including challenges to apex court decisions, must be proved by fully conclusive evidence demonstrating a clear and notorious injustice visible at a mere glance.
Judicial Ethics — Conflict of Interest — Recusal Applications
The proper procedure for recusal applications requires counsel to seek a meeting in chambers with the judge in the presence of the opponent, put the grounds for recusal, and if refused, move the application in open court. Past political affiliations or employment background of a judge do not constitute sound grounds for recusal provided the judge has left behind partisan interests upon taking judicial oath. The assignment of cases to judges is an internal matter of judicial administration.
Self-Represented Litigants — Right of Audience — Professional Fees
Where a legal regime restricts the right of audience before courts to enrolled advocates with valid practicing certificates, a self-represented litigant who is not an enrolled advocate appears before the court as a litigant, not as counsel. Providing alternative seating arrangements for such a litigant does not constitute discrimination. The traditional judicial approach of not awarding professional fees to self-represented litigants on the basis that they have not expended money to engage counsel does not violate the right to a fair hearing.

Legislation cited (15)

Cases cited (8)

  • Union Trade Centre Ltd v Attorney General of the Republic of Rwanda (EACJ Appeal No. 2 of 2015)
  • Ssemogerere & Others v Attorney General (Supreme Court Constitutional Appeal No. 1 of 2002)
  • Attorney General of the Republic of Kenya v Independent Medical Legal Unit (EACJ Appeal No. 1 of 2011)
  • Attorney General of the United Republic of Tanzania v Africa Network for Animal Welfare (EACJ Appeal No. 3 of 2011)
  • Attorney General of the Republic of Uganda & Another v Omar Awadh & 6 Others (EACJ Appeal No. 2 of 2012)
  • James Katabazi & 21 Others v Secretary General of the East African Community & Another (EACJ Reference No. 1 of 2007)
  • East African Civil Society Organisations Forum (EACSOF) v Attorney General of the Republic of Burundi & Others (EACJ Appeal No. 4 of 2016)
  • Eric Kabalisa Makala v Attorney General of the Republic of Rwanda (EACJ Reference No. 1 of 2017)

Full judgment

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

Kiwanuka v Attorney General of the Republic of Uganda (Reference No.6 of 2019) [2020] EACJ 18 (30 September 2020)
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.