Wakilii

Mohochi v Attorney General of Republic of Uganda and Another (Reference 5 of 2011)

East African Court of Justice · [2013] EACJ 8 · 2013 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference brought under the Treaty for the Establishment of the East African Community challenging denial of entry, detention, and deportation from Uganda
Decision
Application granted; Uganda found to have violated Treaty obligations; each party to bear own costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The East African Court of Justice held that Uganda violated Treaty obligations by denying a Kenyan citizen entry without due process. The Court found that while Uganda retains sovereignty to deny entry to unwanted persons, such power must be exercised in compliance with the Treaty and Common Market Protocol guaranteeing free movement of EAC citizens. The denial of entry, detention, and deportation without reasons or hearing violated Articles 6(d), 7(2), and 104 of the Treaty and Article 7 of the Protocol. Section 52 of Uganda's Immigration Act, to the extent inconsistent with Treaty provisions regarding EAC citizens, was rendered inoperative.

Outcome

Application granted; Uganda found to have violated Treaty obligations; each party to bear own costs

Facts

On 13 April 2011, Samuel Mukira Mohochi, a Kenyan advocate and human rights defender, travelled to Uganda as part of a 14-member delegation scheduled to meet Uganda's Chief Justice. Upon arrival at Entebbe International Airport at 9:00 am, he was denied entry at the immigration checkpoint. Immigration authorities served him with a Notice to Return or Convey Prohibited Immigrant addressed to Kenya Airways. He was held from 9:00 am to 3:00 pm and then placed on a flight back to Kenya. No reasons were given for the denial of entry or the declaration as a prohibited immigrant. The other 13 members of his delegation were admitted without incident. The Applicant had visited Uganda on at least three occasions between February and April 2011 without difficulty.

Issues

  1. Whether the Reference is properly before the Court.
  2. Whether the Treaty and the Common Market Protocol take away the sovereignty of Uganda to deny entry to unwanted persons who are citizens of Partner States of the EAC.
  3. Whether the Applicant was detained at Entebbe International Airport and whether the actions complained of, of the Republic of Uganda, were in conformity with Articles 6(d) and 7(2) of the Treaty.
  4. Whether the actions of the Republic of Uganda were in conformity with Article 104 of the EAC Treaty and Article 7(6) of the Common Market Protocol.
  5. Whether the provisions of section 52 of the Uganda Citizenship and Immigration Act are inconsistent and in violation of Articles 6(d), 7(2) and 104 of the Treaty and Article 7 of the Protocol.
  6. Whether the Applicant is entitled to the prayers sought.

Orders

  • The Reference is properly before the Court.
  • The Sovereignty of the Republic of Uganda to deny entry to unwanted persons who are citizens of the Partner States is not taken away by the Treaty and the Protocol but, in denying entry to such persons, the Republic of Uganda is legally bound to ensure compliance with the requirements of the relevant provisions of the Treaty and the Protocol.
  • The denial of entry into Uganda of the Applicant, a citizen of a Partner State, without according him the due process of law was illegal, unlawful and a breach of Uganda's obligations under Articles 6(d) and 7(2) of the Treaty.
  • The actions of denial of entry, detention, removal and return of the Applicant, a citizen of a Partner State, to the Republic of Kenya, a Partner State, were illegal, unlawful and in violation of his rights under Articles 104 of the Treaty and 7 of the Common Market Protocol.
  • On matters pertaining to citizens of the Partner States, any provisions of Section 52 of Uganda's Citizenship and Immigration Control Act formerly inconsistent with provisions of the Treaty and the Protocol were rendered inoperative and have no force of law.
  • Each party shall bear its costs.

Rules and key headnotes

Treaty Interpretation — Jurisdiction of East African Court of Justice — Human Rights Allegations
The East African Court of Justice has jurisdiction under Article 27(1) of the Treaty to interpret and apply Treaty provisions even where a Reference includes allegations of human rights violations, provided the cause of action is constituted by alleged infringements of specific Treaty provisions rather than violations of human rights under national constitutions or international law.
Treaty Interpretation — Fundamental Principles — Justiciability
The fundamental principles set out in Article 6 of the Treaty, including good governance, rule of law, accountability, transparency, and human rights protection, are not mere aspirations but constitute solemn and binding obligations of immediate, constant, and consistent conduct by Partner States, breach of which gives rise to Treaty infringement.
Free Movement of Persons — Sovereignty — Treaty Obligations
While Partner States retain sovereignty to deny entry to unwanted persons including citizens of other Partner States, such sovereignty is qualified by Treaty obligations and can only be validly exercised in strict compliance with Articles 104 and 7(2) of the Treaty and Articles 7 and 54(2) of the Common Market Protocol; sovereignty cannot act as a defence or justification for non-compliance with Treaty requirements.
Free Movement of Persons — Limitations — Procedural Requirements
A Partner State may impose limitations on the free movement of EAC citizens only on grounds of public policy, public security, or public health under Article 7(5) of the Common Market Protocol, and must notify other Partner States accordingly under Article 7(6); such limitations must be based on a genuine, present, and sufficiently serious threat affecting fundamental interests of society, verified in each individual case.
Due Process — Right to be Heard — Immigration Decisions
Where a Partner State denies entry to a citizen of another Partner State, the principles of good governance under Article 6(d) and the right to redress under Article 54(2) of the Protocol require that the affected person be given sufficient reasons for the decision, afforded a fair opportunity to be heard, and have their representations considered before the decision is made; mere administrative processing such as filling immigration cards and taking fingerprints does not constitute due process.
Supremacy of Community Law — Conflict with National Law
Once the Treaty and Common Market Protocol are given force of law within a Partner State, they become directly enforceable and take precedence over national law that is in conflict with them; existing national legal provisions become qualified and are applicable only to the extent that they are consistent with Treaty and Protocol provisions; national law cannot make its effects prevail over those of Community law.
Prohibited Immigrants — National Legislation — EAC Citizens
Provisions of national immigration legislation that are inconsistent with Treaty and Protocol guarantees of free movement for EAC citizens are rendered inoperative as to such citizens from the date of entry into force of the Treaty and Protocol as applicable law in the Partner State; such provisions remain applicable to citizens of non-Partner States.

Legislation cited (20)

  • 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 30
  • Treaty for the Establishment of the East African Community Article 38
  • Treaty for the Establishment of the East African Community Article 104
  • East African Common Market Protocol Article 7
  • East African Common Market Protocol Article 54(2)
  • Uganda Citizenship and Immigration Control Act Cap 66 s.52
  • Uganda Citizenship and Immigration Control Act Cap 66 s.66(4)
  • African Charter on Human and Peoples' Rights Article 2
  • African Charter on Human and Peoples' Rights Article 6
  • African Charter on Human and Peoples' Rights Article 7
  • African Charter on Human and Peoples' Rights Article 9
  • African Charter on Human and Peoples' Rights Article 10
  • African Charter on Human and Peoples' Rights Article 11
  • African Charter on Human and Peoples' Rights Article 12
  • East African Court of Justice Rules of Procedure Rule 1(2)
  • East African Court of Justice Rules of Procedure Rule 24
  • East African Court of Justice Rules of Procedure Rule 111

Cases cited (10)

  • Katabazi and Others v Attorney General of Uganda (EAC Reference No. 1 of 2011)
  • Attorney General of Kenya v Independent Medical Legal Unit (EACJ Appeal No. 1 of 2011)
  • Centre for Health Human Rights and Development and Others v Attorney General of Uganda (Constitutional Petition No. 16 of 2011)
  • Attorney General of Rwanda v Rugumba (EACJ Appeal No. 1 of 2012)
  • Attorney General of Uganda v Awadh and Others (EACJ Appeal No. 2 of 2012)
  • Rugumba v Attorney General of Rwanda (EAC Reference No. 10 of 2010)
  • Costa vs Enel, Case 6/64
  • State v Royer Case 48/75
  • Raducan & Anor -v- MJELR & Ors [2011] IEHC 224
  • Commission of the European Communities v Kingdom of Spain, Case - 503/03

Full judgment

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

Mohochi v Attorney General of Republic of Uganda and Another (Reference 5 of 2011) [2013] EACJ 8 (24 May 2013)
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.