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Mbowe and Others v Attorney General of the Republic of Tanzania (Application No.2 of 2019)

East African Court of Justice · [2020] EACJ 24 · 2020 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for interim orders arising from Reference No. 3 of 2019 challenging provisions of the Political Parties (Amendment) Act, No. 1 of 2019
Decision
Application dismissed; main Reference 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 application for interim orders to restrain enforcement of provisions of the Political Parties (Amendment) Act, No. 1 of 2019 pending determination of the main Reference. While the applicants established a serious triable issue, they failed to demonstrate irreparable injury that could not be compensated by damages. The balance of convenience favoured preserving the status quo with the Act remaining operational given the far-reaching repercussions to the constitutional order of staying a vital law during an electoral cycle.

Outcome

Application dismissed; main Reference to proceed to hearing

Facts

The applicants, Tanzanian citizens and political party leaders, challenged provisions of the Political Parties (Amendment) Act, No. 1 of 2019, alleging violations of the Treaty for the Establishment of the East African Community. They sought interim orders restraining enforcement of several provisions pending determination of their Reference. The impugned Act required political parties and institutions to notify the Registrar of Political Parties 30 days before conducting civic education. The applicants contended this was impracticable given the National Electoral Commission had issued a 17-day schedule for upgrading the Permanent Voters Register. They argued the Act granted absolute discretion to the Registrar, criminalised civic education without approval, and violated principles of democracy, rule of law, and human rights. The respondent opposed the application, arguing the Act was valid law aimed at promoting transparency, accountability, and protection of state security.

Issues

  1. Whether the applicants demonstrated a prima facie case with probability of success warranting the grant of interim orders.
  2. Whether the applicants would suffer irreparable injury that could not be adequately compensated by damages if interim orders were not granted.
  3. Where the balance of convenience lay as between granting and refusing the interim orders sought.

Orders

  • Application for interim orders dismissed.
  • Costs of the application to abide the outcome of Reference No. 3 of 2019.
  • Reference No. 3 of 2019 to be fixed for hearing forthwith.

Rules and key headnotes

Interim Orders — Test for Grant — Three-fold Test
The grant of interim orders requires satisfaction of a three-fold sequential test: first, the court must be satisfied there is a serious question to be tried on the merits; second, the applicant must demonstrate they would suffer irreparable injury which could not be adequately compensated by damages; third, if the court is in doubt, it will decide on the balance of convenience.
Interim Orders — Serious Triable Issue — Test
A serious triable issue is established where, on the face of it and without recourse to the merits, the substantive reference discloses a cause of action within the precincts of the Treaty, specifically where it raises a legitimate legal question under the Court's legal regime or contends that the matter complained of violates national law or infringes provisions of the Treaty.
Interim Orders — Irreparable Injury — Lawful Arrest and Prosecution
The possible incidence of lawful arrests and prosecution per se does not necessarily amount to irreparable injury unless it can be demonstrated that, if subsequently found to have been illegal, such wrongful arrest, detention or prosecution cannot be compensated by an award of damages.
Interim Orders — Balance of Convenience — Preservation of Status Quo
When considering the balance of convenience, where both parties stand to forego substantial considerations and the balance is evenly poised, the court should yield to the counsel of prudence and take such measures as would preserve the status quo pending determination of the main matter.
Affidavits — Supplementary Affidavits — Leave of Court
An applicant may lodge supplementary affidavits only with leave of the court or consent of the other party, but affidavits filed in support of an amended application in accordance with the rules are not supplementary affidavits requiring such leave or consent.

Legislation cited (23)

  • 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 39
  • East African Court of Justice Rules of Procedure 2013 Rule 21(1)
  • East African Court of Justice Rules of Procedure 2013 Rule 21(5)
  • East African Court of Justice Rules of Procedure 2013 Rule 21(6)
  • East African Court of Justice Rules of Procedure 2013 Rule 48(a)
  • East African Court of Justice Rules of Procedure 2013 Rule 73(1)
  • Political Parties (Amendment) Act, No. 1 of 2019 s.3
  • Political Parties (Amendment) Act, No. 1 of 2019 s.23
  • Political Parties Act Cap. 258 s.4(5)(b)
  • Political Parties Act Cap. 258 s.4(5)(f)
  • Political Parties Act Cap. 258 s.5A
  • Political Parties Act Cap. 258 s.5B
  • Political Parties Act Cap. 258 s.6A(5)
  • Political Parties Act Cap. 258 s.6B(a)
  • Political Parties Act Cap. 258 s.8C
  • Political Parties Act Cap. 258 s.8E
  • Political Parties Act Cap. 258 s.11A
  • Political Parties Act Cap. 258 s.18(6)
  • Political Parties Act Cap. 258 s.18(7)
  • Political Parties Act Cap. 258 s.21D
  • Political Parties Act Cap. 258 s.21E

Cases cited (10)

  • The Democratic Party & Another v The Secretary General of The East African Community (Application No. 6 of 2011)
  • Francis Ngaruko v Attorney General of the Republic of Burundi (Application No. 3 of 2019)
  • Male H. Mabirizi K. Kiwanuka v Attorney General of the Republic of Uganda (Application No. 5 of 2019)
  • British American Tobacco v Attorney General of the Republic of Uganda (Application No. 13 of 2017)
  • American Cyanamid Company v Ethicon Limited [1975] AC 396
  • Sitenda Sebalu v The Secretary General of the East African Community & Others (Reference No. 1 of 2010)
  • Simon Peter Ochieng & Another v The Attorney General of the Republic of Uganda (Reference No. 11 of 2013)
  • Prof. Peter Anyang' Nyong'o & 10 Others v The Attorney General of the Republic of Kenya & 3 Others (Application No. 1 of 2006)
  • Timothy Alvin Kahoho v The Secretary General of the East African Community (Application No. 5 of 2012)
  • Cayne v Global Natural Resources PLC [1984] 1 All ER 225

Full judgment

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Mbowe and Others v Attorney General of the Republic of Tanzania (Application No.2 of 2019) [2020] EACJ 24 (17 June 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.