Wakilii

Media Legal Defence Initiative (MDLI) and Others v Sembuusi and Another (Application 4 of 2015)

East African Court of Justice · [2017] EACJ 96 · 2017 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appear as amici curiae in Reference No. 16 of 2014, following remittal by the Appellate Division to determine a preliminary objection
Decision
Application granted; applicants joined as amici curiae in Reference No. 16 of 2014

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Holding

The Court overruled the preliminary objection to the affidavit by expunging defective paragraphs that failed to disclose sources of information, finding the remaining affidavit competent. The Court held that the applicants demonstrated sufficient interest in the outcome of Reference No. 16 of 2014 concerning freedom of expression and criminal defamation, and possessed relevant expertise. The Court granted leave for the applicants to appear as amici curiae, finding their scholarly interest distinguishable from partisan advocacy and their contribution potentially useful to the Court's determination.

Outcome

Application granted; applicants joined as amici curiae in Reference No. 16 of 2014

Facts

The applicants, comprising Media Legal Defence Initiative and 19 other organizations, sought leave to appear as amici curiae in Reference No. 16 of 2014, which challenged sections 179 and 180 of Uganda's Penal Code Act on criminal defamation. The Court had previously delivered a ruling in favour of the applicants on 28 June 2016, but the Appellate Division quashed it on 25 May 2017 for failing to determine a preliminary objection raised by the 2nd Respondent. The Appellate Division directed the Trial Court to reconstitute itself and issue a fresh ruling addressing the preliminary objection before considering the merits. The 2nd Respondent objected that the supporting affidavit was hearsay and did not disclose sources of information. The applicants maintained their affidavit was competent and that they possessed expertise in freedom of expression issues. The 1st Respondent did not oppose the application.

Issues

  1. Whether the affidavit in support of the application was competent or should be struck out for being hearsay and not disclosing sources of information.
  2. Whether the applicants satisfied the requirements for leave to appear as amici curiae under Rule 36(2)(e) and Rule 36(4) of the East African Court of Justice Rules of Procedure 2013.
  3. Whether the applicants demonstrated neutrality and independence from the parties to the dispute.
  4. Whether the applicants possessed sufficient expertise and interest in the subject matter to justify their joinder as amici curiae.

Orders

  • Medical Legal Defence Initiative (MDLI) and Others are granted leave to join Reference No. 16 of 2014 as amici curiae.
  • The amici curiae are granted leave to submit a joint Amicus Brief in writing in Reference No. 16 of 2014 within such time frame as shall be directed by the Court.
  • The Amicus Brief shall be restricted to issues within the amici curiae's mandate and of specific relevance to the Reference.
  • No order as to costs.

Rules and key headnotes

Affidavits — Defects — Hearsay and Failure to Disclose Sources — Remedy by Expunging Defective Paragraphs
Where an affidavit contains paragraphs deponed on information and belief without disclosing sources of information and grounds of belief, and such defects are inconsequential to the substantive application, the court may expunge the offending paragraphs rather than strike out the entire affidavit, leaving the substantive part intact.
Amicus Curiae — Requirements for Leave to Appear — Interest in Outcome and Justification
An applicant for leave to appear as amicus curiae must demonstrate an interest in the outcome of the case under Rule 36(2)(e) and establish circumstances that prima facie justify its appearance under Rule 36(4) of the East African Court of Justice Rules of Procedure 2013.
Amicus Curiae — Parameters for Joinder — Neutrality, Expertise, Public Interest, and Interests of Justice
The parameters for determining joinder of an applicant as amicus curiae include: (a) the principle of neutrality — the prospective amicus curiae should be neutral, impartial, and independent of the parties; (b) demonstration of reasonable expertise in the subject matter and fidelity to the law; (c) the case involves important questions of law in an area of public interest; (d) the questions of law do not concern the parties but are of concern to the court; and (e) it is otherwise in the interests of justice to admit the prospective amicus curiae.
Amicus Curiae — Neutrality and Bias — Scholarly Interest Distinguished from Partisan Advocacy
A prospective amicus curiae's scholarly interest in a subject matter and campaign activities related to legal reform in that area do not constitute bias or lack of neutrality where such activities reflect the organization's mandate and expertise, and are distinguishable from unprincipled rights-based agitation by pressure groups and lobbyist organizations.
Amicus Curiae — Role and Court's Discretion — Duty to Provide Impartial Information
An amicus curiae assists the court by providing information so that the court will not fall into error, but does not seek to influence the final outcome or persuade the court to adopt a particular view. The court retains discretion to determine the neutrality of positions advanced in an amicus brief and to disregard briefs that seek to influence the outcome or are biased, irrational, or unresearched.

Legislation cited (8)

  • Treaty for the Establishment of the East African Community Articles 23, 27, 40, 127
  • Treaty for the Establishment of the East African Community Articles 6(d), 7(2), 8(1)(a), 8(1)(c)
  • East African Court of Justice Rules of Procedure 2013 Rules 21, 36, 53
  • East African Court of Justice Rules of Procedure 2013 Rule 21(5)
  • East African Court of Justice Rules of Procedure 2013 Rule 36(2)(e)
  • East African Court of Justice Rules of Procedure 2013 Rule 36(4)
  • Uganda Penal Code Act Cap 120 ss.179, 180
  • Code of Civil Procedure Act V of 1908 (India) Order 19

Cases cited (9)

  • Burundian Journalists Union v Attorney General of the Republic of Burundi (EACJ Reference No. 7 of 2013)
  • Attorney General v Silver Springs Hotel (Civil Appeal No. 1 of 1989)
  • Forum pour Reinforcement de la Societe Civile (FORSC) and 8 Others v Burundi Journalists Union and Another (EACJ Application No. 2 of 2014)
  • Samuel Kimaro v Hidaya Didas (Civil Application No. 20 of 2012)
  • Phantom Modern Transport (1985) Ltd v D. T. Dobie (Tanzania) Ltd (Civil Reference No. 15 of 2001 and 3 of 2005)
  • UHAI EASHRI and Another v Human Rights Awareness Promotion Forum (HRAPF) and Another (EACJ Applications No. 20 & 21 of 2014)
  • Advocats San Frontiers v Mbugua Mureithi Wanyambura and 2 Others (EACJ Application No. 2 of 2013)
  • Dr. Ally Possi and Another v Human Rights Awareness Promotion Forum (HRAPF) and Another (EACJ Application No. 1 of 2015)
  • Secretariat of the joint United Nations Programme on HIV/AIDS v HRAPF and Another (EACJ Application No. 3 of 2015)

Full judgment

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Media Legal Defence Initiative (MDLI) and Others v Sembuusi and Another (Application 4 of 2015) [2017] EACJ 96 (20 September 2017)
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.