Wakilii

Kyarimpa v A.G. of Uganda (Appeal 6 of 2014)

East African Court of Justice · [2014] EACJ 109 · 2014 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the First Instance Division of the East African Court of Justice dismissing a Reference alleging breach of Treaty obligations
Decision
Appeal partially allowed with declaration of Treaty breach; enforcement orders refused; each party to bear own costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Appellate Division held that the Government of Uganda's selection of Sinohydro and signing of a Memorandum of Understanding without following the Public Procurement and Disposal of Assets Act, and in disobedience of High Court and Constitutional Court orders, violated the Treaty principles of rule of law, transparency, and accountability. However, the Court found that Article 38(2) of the Treaty does not constitute an automatic injunction restraining a Partner State from acting after a dispute is filed. The appeal was partially allowed with a declaration of Treaty breach but no enforcement orders.

Outcome

Appeal partially allowed with declaration of Treaty breach; enforcement orders refused; each party to bear own costs

Facts

In 2013, the Government of Uganda requested bids for construction of the 600 MW Karuma Hydroelectric Plant. The appellant, a procurement consultant, aligned with China International which submitted a bid. The Inspector General of Government recommended cancellation of the procurement process. The Cabinet directed cancellation. High Court and Constitutional Court orders were issued restraining implementation of the IGG recommendations and maintaining the status quo. Despite these orders, on 23 April 2013 the Contracts Committee cancelled all bids under Section 75 of the PPDA Act. Subsequently, the Government selected Sinohydro and signed a Memorandum of Understanding on 20 June 2013, followed by an EPC Contract on 16 August 2013. The appellant filed a Reference alleging breach of Treaty obligations.

Issues

  1. Whether the selection and subsequent signing of the Memorandum of Understanding between the Government of Uganda and Sinohydro was inconsistent with and an infringement of Articles 6(c) and (d), 7(2) and 8(1) of the Treaty.
  2. Whether the acts of the Government of Uganda in implementing the MoU after the filing of the Reference was inconsistent with and an infringement of Article 38(2) of the Treaty.
  3. Whether the Trial Court erred in law in declining to award costs to the Respondent.

Orders

  • Appeal partially allowed.
  • Cross-appeal dismissed.
  • That part of the Judgment of the Trial Court refusing to issue a Declaration that the selection and subsequent signing of a Memorandum of Understanding between the Government of Uganda and Sinohydro was inconsistent with and an infringement of Articles 6(c), 7(2), and 8(1) be set aside.
  • Declaration issued that the selection and subsequent signing of the Memorandum of Understanding between the Government of Uganda and Sinohydro was inconsistent with and an infringement of Articles 6(d), 7(2) and 8(1)(c) of the Treaty.
  • That part of the Judgment of the Trial Court issuing an order of Declaration that the acts of the Government of Uganda in implementing the Memorandum of Understanding between itself and Sinohydro after the filing of the Reference was not inconsistent with or an infringement of Article 38(2) of the Treaty be upheld.
  • Each party shall bear their own costs here and below.

Rules and key headnotes

Public Procurement — Compliance with Statutory Framework — Bilateral Agreements
Where a Partner State asserts the existence of a bilateral agreement that ousts the application of domestic procurement legislation, the burden of proof lies on that State to produce the written agreement. Inferences drawn from correspondence and other documents cannot substitute for production of the agreement itself, particularly where domestic law contemplates a written instrument capable of execution and ratification.
Rule of Law — Disobedience of Court Orders — Treaty Obligations
The East African Court of Justice has jurisdiction to determine whether a Partner State's disobedience of its own national court orders constitutes a breach of Treaty principles of rule of law and good governance, without requiring a prior finding of contempt by the national courts. The Court does not need to await determination by national courts before applying its own appreciation of the facts to the Treaty provisions.
Contempt of Court — Lawful Justification for Disobedience
When an act has been prohibited by a court order, unless and until such order has been set aside or vacated by the same court or another court of competent jurisdiction, such act is prohibited. No reason or ground advanced for doing it can suffice to legitimize such action. Lawful justification for disobedience of court orders is not a creature known to the law and is a pure and simple contradiction in terms.
Treaty Interpretation — Article 38(2) — Automatic Injunction
Article 38(2) of the Treaty for the Establishment of the East African Community, which requires Partner States to refrain from actions detrimental to dispute resolution, constitutes a call to self-censorship by the Partner State and does not amount to an automatic injunction. The relevant judgment on whether an action is detrimental or aggravating is that of the Partner State itself, not the Court.
Rule of Law — Good Governance — Transparency and Accountability
Procurement conducted in contravention of a Partner State's internal laws offends the Treaty principles of rule of law, transparency, and accountability encapsulated in Articles 6(d) and 7(2) of the Treaty. Any conduct in breach of the rule of law is conduct likely to jeopardize the achievement of Treaty objectives and offends Article 8(1)(c).
Treaty Interpretation — Vienna Convention — Ordinary Meaning Rule
The golden rule of treaty interpretation is that the words of a treaty must, in the absence of ambiguity, be interpreted in good faith and in accordance with their ordinary and natural meaning. Where the words of a treaty are clear and unambiguous, they must be given their natural and ordinary meaning, and the Court should look at what is clearly said rather than the intendment or presumption.
Remedies — Declarations — Enforcement Orders — Impracticability
While the East African Court of Justice has jurisdiction to grant remedies including declarations, injunctions, and reparation for Treaty breaches, remedies are only to be granted to the extent possible. Where enforcement orders would require reversal of actions that have progressed to a fait accompli, such orders may be refused on grounds of impracticability, though a declaration of breach may still issue.

Legislation cited (15)

  • Treaty for the Establishment of the East African Community Article 6
  • Treaty for the Establishment of the East African Community Article 7(2)
  • Treaty for the Establishment of the East African Community Article 8(1)
  • Treaty for the Establishment of the East African Community Article 23
  • Treaty for the Establishment of the East African Community Article 30
  • Treaty for the Establishment of the East African Community Article 38(2)
  • Treaty for the Establishment of the East African Community Article 39
  • Constitution of Uganda Article 123
  • Constitution of Uganda Article 159
  • Public Procurement and Disposal of Assets Act 2003 s.2
  • Public Procurement and Disposal of Assets Act 2003 s.4
  • Public Procurement and Disposal of Assets Act 2003 s.75
  • Public Procurement and Disposal of Public Assets Regulations 2003 Regulation 5
  • Vienna Convention on the Law of Treaties 1969 Article 27
  • Vienna Convention on the Law of Treaties 1969 Article 31

Cases cited (13)

  • Katabazi and Others v Secretary General of the East African Community and Attorney General of Uganda (Reference No. 1 of 2007)
  • Kahoho v Secretary General of the East African Community (Application No. 5 of 2012)
  • East African Law Society and Others v Attorney General of Kenya and Others (Reference No. 3 of 2007)
  • East African Centre for Trade Policy & Law v Secretary General of the East African Community (Reference No. 19 of 2012)
  • Rugumba v Attorney General of Rwanda (Reference No. 8 of 2010)
  • Muhochi v Attorney General of Uganda (Reference No. 5 of 2011)
  • Elettronica Sicula S.P.A. [Elsi] Judgment, [ICJ REPORTS], 1989, p.15 at paragraph 73
  • Olmstead V United States,[1928],277 U.S.438
  • The Sussex Peerage (1844)
  • Uganda Revenue Authority v Kajura (Civil Appeal No. 26 of 2013)
  • Bennet V Chappell [1960] CH. 391, (C.A)
  • Williams V. Home Office (No. 2) [1981] ALL ER 1211
  • Request by the Council of Ministers for an Advisory Opinion (Advisory Opinion No. 1 of 2015)

Full judgment

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

Kyarimpa v A.G. of Uganda (Appeal 6 of 2014) [2014] EACJ 109 (28 November 2014)
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.