Wakilii

Mahok v Attorney General of the Republic South Sudan (Reference No.19 of 2018)

East African Court of Justice · [2022] EACJ 11 · 2022 Reference Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference filed under Articles 6(c), 6(d), 7(2) and 27 of the Treaty for the Establishment of the East African Community challenging alleged violations of domestic law and Treaty provisions
Decision
Reference dismissed for failure of proof

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice dismissed the Reference for failure of proof. The Applicant alleged that South Sudan violated domestic law and Treaty provisions by detaining Mr Kerbino Agok Wol and freezing his assets. The Court held it had jurisdiction ratione temporis as the Reference was filed within two months of the complained acts. However, the Applicant failed to adduce sufficient evidence to prove the allegations on the balance of probabilities. The sole affidavit contained hearsay and lacked corroboration. Each party to bear own costs.

Outcome

Reference dismissed for failure of proof

Facts

Garang Michael Mahok filed a Reference on behalf of Kerbino Agok Wol, alleging that South Sudan violated domestic law and Treaty provisions by arresting and detaining Mr Wol from 27 April 2018 without due process, failing to release him following the Revitalised Agreement on the Resolution of Conflict in South Sudan (12 September 2018) and Presidential Order No. 17 (27 September 2018), and freezing his bank accounts on 11 October 2018. The Respondent contended that Mr Wol was an active National Security Service officer who engaged in unauthorised business activities, was tried and convicted, and later pardoned by the President. The Applicant filed only one affidavit by Dr Robert Portada III, which the Court found contained hearsay and lacked corroboration. The Respondent filed no affidavit evidence.

Issues

  1. Whether the Court has jurisdiction to entertain the Reference
  2. Whether the Reference is time barred
  3. Whether the Respondent's actions constituted a violation of the Respondent's domestic law and therefore violated Articles 6(d) and 7(2) of the Treaty
  4. Whether the Parties are entitled to the remedies sought

Orders

  • Reference dismissed in its entirety.
  • Each party to bear their own costs.

Rules and key headnotes

East African Court of Justice — Jurisdiction — Ratione Temporis — Time Limitation under Article 30(2) of the Treaty
Under Article 30(2) of the Treaty for the Establishment of the East African Community, proceedings must be instituted within two months of the enactment, publication, directive, decision or action complained of, or in the absence thereof, of the day in which it came to the knowledge of the complainant. Time starts to run two months after the action or decision was first taken or made, not the day the act ends. The principle of legal certainty requires strict application of the time limit, and the Treaty provides no power to the Court to extend, condone, waive, or modify the prescribed time limit for any reason including for continuing violations.
East African Court of Justice — Jurisdiction — Types of Jurisdiction — Ratione Personae, Ratione Materiae, Ratione Temporis
The East African Court of Justice recognises three types of jurisdiction: ratione personae (capacity or locus standi of parties), ratione materiae (subject matter jurisdiction as outlined in Articles 30, 31 and 32 of the Treaty), and ratione temporis (time-frame prescribed for institution of cases). Jurisdiction is the most fundamental issue a court faces in any trial and is the foundation upon which the judicial edifice is constructed. Without jurisdiction, a court cannot proceed to hear and dispose of a case.
Burden of Proof — International Claims — Applicant Must Establish Case
In international claims before the East African Court of Justice, the burden of proof rests with the party, whether complaining or defending, who asserts the affirmative of a particular claim or defence. The applicant must establish its case and a party asserting a fact must establish it. If that party adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the other party. The applicant must adduce evidence sufficient to enable the court to shift the burden of proof to the respondent.
Affidavit Evidence — Hearsay — Corroboration Required
Where an affidavit contains information that is not within the deponent's personal knowledge, the court will be entitled to disregard such evidence unless there is cogent evidence to corroborate such evidence. An affidavit containing hearsay statements cannot by itself be relied upon to make a determination of serious allegations of abrogation of rights.

Legislation cited (24)

  • Treaty for the Establishment of the East African Community Article 6(c)
  • 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 27
  • 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)
  • East African Court of Justice Rules of Procedure, 2013 Rule 1(2)
  • East African Court of Justice Rules of Procedure, 2013 Rule 24
  • East African Court of Justice Rules of Procedure, 2013 Rule 127
  • African Charter on Human and People's Rights Article 9(1)
  • Transitional Constitution of the Republic of South Sudan, 2011 Article 4(2)
  • Transitional Constitution of the Republic of South Sudan, 2011 Article 12
  • Transitional Constitution of the Republic of South Sudan, 2011 Article 19
  • Transitional Constitution of the Republic of South Sudan, 2011 Article 20
  • Penal Code Act of South Sudan Article 154
  • Penal Code Act of South Sudan Article 284
  • Code of Criminal Procedure of South Sudan Article 44
  • Code of Criminal Procedure of South Sudan Article 64
  • South Sudan Police Service Act Article 9(3)
  • National Security Service Act of South Sudan, 2014 Section 5
  • National Security Service Act of South Sudan, 2014 Section 13(2)
  • National Security Service Act of South Sudan, 2014 Article 54(2)
  • National Security Service Act of South Sudan, 2014 Section 56

Cases cited (11)

  • Attorney General of the United Republic of Tanzania v Anthony Calist Komu (EACJ Appeal No. 2 of 2015)
  • Attorney General of the United Republic of Tanzania v African Network of Animal Welfare (EACJ Reference No. 9 of 2010)
  • Attorney General of the Republic of Kenya v Independent Medical Legal Unit (EACJ Appeal No. 1 of 2011)
  • Attorney General of the Republic of Uganda v Omar Awadh & 6 Others (EACJ Appeal No. 2 of 2012)
  • Weismann Lanza & Alcides Lanza Perdomo vs Uruguay, No. R. 2/8, U.N. Doc. Supp. No. 40
  • L. Magana ex-Philibert vs Zaire, Communication No. 90/1981
  • Plaxeda Rugumba v Secretary General of the East African Community (EACJ Reference No. 8 of 2010)
  • Media Legal Defence Initiative & 19 Others v Ronald Ssembuusi (Deceased) and Attorney General of the Republic of Uganda (EACJ Application No. 4 of 2015)
  • British American Tobacco (U) Ltd v Attorney General of Uganda (EACJ Reference No. 7 of 2017)
  • Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina vs Serbia & Montenegro), Judgment, ICJ Reports 2007, p. 43
  • Military and para-military activities in and against Nicaragua (Nicaragua vs United States of America)

Full judgment

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Mahok v Attorney General of the Republic South Sudan (Reference No.19 of 2018) [2022] EACJ 11 (24 June 2022)
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.