Wakilii

Mbidde Foundation Ltd and Another v Secretary General of the East African Community and Another

East African Court of Justice · [2014] EACJ 147 · 2014 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated applications for interim orders restraining the East African Legislative Assembly from investigating or removing the Speaker from office, arising from two references challenging the procedure for removal of the Speaker under EALA Rules of Procedure
Decision
Applications for interim orders dismissed; underlying references to proceed to hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court dismissed the consolidated applications for interim orders. It held that the applicants failed to demonstrate a serious triable issue constituting an infringement of the EAC Treaty. The presentation of the petition for removal of the Speaker was in compliance with EALA Rules of Procedure duly promulgated under the Treaty. The alleged bias of the Committee on Legal, Rules and Privileges had not crystallized into a Treaty infringement as the issue had not been raised before the Assembly. The Court declined to grant the injunction, finding no prima facie demonstration of Treaty infringement invoking Article 30(1).

Outcome

Applications for interim orders dismissed; underlying references to proceed to hearing

Facts

On 27 March 2014, a motion for removal of the Speaker of the East African Legislative Assembly (EALA) was tabled. The Speaker, Rt. Hon. Margaret Zziwa, adjourned the Assembly sine die before the petition was referred to the Committee on Legal, Rules and Privileges. She filed Reference No. 5 of 2014 challenging the removal procedure. Mbidde Foundation Ltd had earlier filed Reference No. 3 of 2014 similarly challenging the procedure. Both applicants sought interim orders restraining EALA from investigating or removing the Speaker, alleging that the procedure under Rule 9 of the EALA Rules of Procedure infringed the EAC Treaty provisions on natural justice and good governance. The applications were consolidated. The first applicant contended that the EALA Rules had never been formally adopted as required by Rule 88 and that the removal procedure was too hasty. The second applicant alleged bias in the Committee on Legal, Rules and Privileges.

Issues

  1. Whether the applicants demonstrated a serious question to be tried warranting the grant of interim orders restraining EALA from proceeding with the removal of the Speaker.
  2. Whether the presentation of the petition for removal of the Speaker to EALA constituted an infringement of the EAC Treaty.
  3. Whether the EALA Rules of Procedure, particularly Rule 9 governing removal of the Speaker, were validly adopted and compliant with the EAC Treaty.
  4. Whether the alleged bias of the Committee on Legal, Rules and Privileges gave rise to a cause of action under Article 30(1) of the EAC Treaty at this interlocutory stage.

Orders

  • Consolidated application dismissed.
  • Costs to abide the outcome of the consolidated Reference.
  • Consolidated Reference to be fixed for hearing as a matter of priority.

Rules and key headnotes

Interlocutory Injunctions — Test for Grant — Serious Question to be Tried
The requirement for an applicant to establish a prima facie case with probability of success as a condition for grant of an interlocutory injunction has been superseded by the requirement to demonstrate a serious question to be tried. The court need not resolve conflicts of evidence or decide difficult questions of law at the interlocutory stage; it must only be satisfied that the claim is not frivolous or vexatious.
Interlocutory Injunctions — Balance of Convenience — Compensability by Damages
The compensability of either party by damages is one of the considerations to be weighed by the court in determining where the balance of convenience lies, and not necessarily a separate condition for the grant or refusal of an injunction. The court must weigh the need of the plaintiff for protection against injury that cannot be adequately compensated in damages against the corresponding need of the defendant to be protected against injury resulting from being prevented from exercising legal rights.
Advisory Opinions — Discretion of Organs to Seek — No Obligation
Article 36 of the EAC Treaty does not oblige the entities mandated to seek an advisory opinion from the Court to do so, whether of their own volition or when requested by a purportedly interested party. The failure to seek an advisory opinion when requested does not constitute an infringement of the Treaty.
EALA Rules of Procedure — Adoption Requirement — Rule 88
Rule 88(1) of the EALA Rules of Procedure, which provides that the first sitting of the Assembly elected under the Treaty shall be for purposes of adopting the Rules, refers to the very first meeting following the inception of EALA and not to the first meeting of each successive Assembly. The use of the definite article 'the' rather than 'every' indicates that adoption was required only once at the inception of the Assembly.
Separation of Powers — Jurisdiction of Court — Premature Intervention
Where an allegation of bias is raised concerning an internal committee of a legislative assembly, the issue must first be raised before the assembly itself to allow it to address the complaint through recusal, amendment of rules, or other necessary measures. The allegation of bias does not give rise to a cause of action under Article 30(1) of the EAC Treaty until the bias has crystallized through the assembly's failure or refusal to address it. Courts must observe and uphold the doctrine of separation of powers regarding the respective mandates of each organ of the Community.
Treaty Infringement — Article 30(1) — Compliance with Duly Promulgated Rules
The presentation of a petition to the Assembly in compliance with Rules of Procedure duly promulgated under Articles 49(2) and 60 of the EAC Treaty does not constitute an infringement of the Treaty. Where no material is availed to suggest that the Rules per se infringe Treaty provisions, compliance with those Rules constitutes compliance with the Treaty.

Legislation cited (19)

  • EAC Treaty Article 4(3)
  • EAC Treaty Article 6(d)
  • EAC Treaty Article 7(2)
  • EAC Treaty Article 30
  • EAC Treaty Article 30(1)
  • EAC Treaty Article 36
  • EAC Treaty Article 36(1)
  • EAC Treaty Article 39
  • EAC Treaty Article 49(2)
  • EAC Treaty Article 49(2)(g)
  • EAC Treaty Article 53
  • EAC Treaty Article 53(3)
  • EAC Treaty Article 60
  • EALA Rules of Procedure Rule 1
  • EALA Rules of Procedure Rule 9
  • EALA Rules of Procedure Rule 9(4)
  • EALA Rules of Procedure Rule 83
  • EALA Rules of Procedure Rule 88
  • EALA Rules of Procedure Rule 88(1)

Cases cited (5)

  • Giella v Cassman Brown (1973) EA 358
  • Prof. Peter Anyang' Nyongo and 10 Others v Attorney General of the Republic of Kenya and 3 Others (EACJ Reference No. 1 of 2006)
  • E.A. Industries v Trufoods [1972] EA 420
  • Hubbard v Vosper [1972] 2 QB 84
  • American Cyanamid v Ethicon Ltd [1975] AC 396

Full judgment

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

Mbidde Foundation Ltd and Another v Secretary General of the East African Community and Another [2014] EACJ 147 (29 May 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.