Wakilii

Nyong'o and Others v A.G. of Kenya and Others (Reference 1 of 2006)

East African Court of Justice · [2007] EACJ 6 · 2007 Reference Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference under Article 30 of the Treaty for the Establishment of the East African Community seeking interpretation and application of Article 50 regarding election of members to the East African Legislative Assembly
Decision
Reference allowed. Court declared that Kenya's National Assembly did not conduct an election as required by Article 50 of the Treaty and that the Election Rules 2001 infringe Article 50.

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The East African Court of Justice held that Kenya's National Assembly did not undertake an election within the meaning of Article 50 of the Treaty for the Establishment of the East African Community, and that the Election Rules 2001 infringed Article 50 by providing for a legal fiction whereby nominees were deemed elected without actual voting by the National Assembly. The Court declared that Article 50 requires the National Assembly itself to elect members through a voting process, and that the discretion to determine procedure does not extend to delegating the election function or substituting a deemed election for a real one.

Outcome

Reference allowed. Court declared that Kenya's National Assembly did not conduct an election as required by Article 50 of the Treaty and that the Election Rules 2001 infringe Article 50.

Facts

In October 2006, Kenya's National Assembly was to elect nine members to the East African Legislative Assembly under Article 50 of the Treaty. Three parliamentary political parties submitted lists of nominees to the House Business Committee. NARC submitted two conflicting lists: one from the party leader through the Clerk, and another from the Government Chief Whip. The House Business Committee approved the Government Chief Whip's list, thereby substituting four nominees on the party leader's list with different persons. On 26 October 2006, the Vice President tabled the approved list of nine names before the National Assembly, and under Rule 7 of the Election Rules 2001, these nominees were deemed to be elected without any voting by the National Assembly. The claimants, including the four substituted NARC nominees, challenged this process as contrary to Article 50 of the Treaty.

Issues

  1. Whether the claimants disclosed any cause of action within the meaning of Article 30 of the Treaty
  2. Whether an election was undertaken within the meaning of Article 50 of the Treaty
  3. Whether the Kenya Election Rules (The Treaty for the Establishment of the East African Community (Election of Members of the Assembly) Rules 2001) comply with Article 50 of the Treaty

Orders

  • The National Assembly of Kenya did not undertake an election within the meaning of Article 50 of the Treaty.
  • The Treaty for the Establishment of the East African Community (Election of Members of the Assembly) Rules 2001 infringe Article 50 of the Treaty to the extent of their inconsistency with it.
  • The claimants shall have costs of the reference to be borne by the 1st respondent and to be taxed by the Registrar taking into account that a single applicant could have presented the reference.
  • All other parties shall bear their own costs.

Rules and key headnotes

Treaty Interpretation — Vienna Convention Principles — Ordinary Meaning in Context
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. The absence of a definition of words in a treaty does not mean the parties attached no meaning to them; the court must give the words interpretation in the context they are used.
Treaty Law — Primacy of International Obligations over National Law
A state party to a treaty cannot invoke the provisions of its internal law as justification for its failure to perform the treaty. Where there is conflict between Community law established by treaty and national law, the former is given primacy in order that it may be applied uniformly and that it may be effective.
Legal Fiction — Use of 'Deemed' — Limits on Circumventing Treaty Provisions
Rules made for the purpose of implementing provisions of a treaty cannot be permitted to violate any provision of the treaty through use of legal fiction. A provision that nominees are 'deemed to be elected' creates a fiction that persons are elected although in reality they are not, and such fiction cannot be used to circumvent an express treaty provision requiring actual election.
Election — Meaning of 'Elect' — Requirement of Voting Process
The words 'election' and 'to elect' in the context of a National Assembly choosing persons to hold political positions ordinarily mean choosing or selecting through a process of voting. A reference to a democratic election of persons to political office is understood to mean election by voting. The bottom line for compliance with a treaty provision requiring election is that the decision to elect is a decision of and by the National Assembly through voting.
Delegation of Powers — Delegata Potestas Non Potest Delegari
Where a treaty constitutes a National Assembly into an electoral college with the function of electing representatives, the discretion to determine the procedure of election does not include an option for the National Assembly to assign that function to any other body. A delegated power cannot be delegated (delegata potestas non potest delegari).
Locus Standi — Article 30 Treaty Reference — Special Cause of Action
Article 30 of the Treaty for the Establishment of the East African Community creates a special cause of action by conferring on any person resident in a Partner State the right to refer specified matters to the Court for adjudication. The Article does not require the claimant to show a right or interest that was infringed or damage suffered as a consequence of the matter complained of. There is no legal basis to import such requirement into Article 30.
Estoppel — Inapplicability to Treaty Infringement
The doctrine of estoppel cannot be raised against the operation of statute. Similarly, estoppel cannot be invoked to prevent an inquiry into an alleged infringement of a treaty. If rules made in exercise of power conferred by a treaty are ultra vires, they cannot be saved on the ground that the claimants previously regarded them as intra vires.

Legislation cited (28)

  • Treaty for the Establishment of the East African Community Article 2
  • Treaty for the Establishment of the East African Community Article 5
  • Treaty for the Establishment of the East African Community Article 6
  • Treaty for the Establishment of the East African Community Article 9
  • Treaty for the Establishment of the East African Community Article 23
  • Treaty for the Establishment of the East African Community Article 27
  • Treaty for the Establishment of the East African Community Article 28
  • Treaty for the Establishment of the East African Community Article 29
  • Treaty for the Establishment of the East African Community Article 30
  • Treaty for the Establishment of the East African Community Article 33
  • Treaty for the Establishment of the East African Community Article 34
  • Treaty for the Establishment of the East African Community Article 40
  • Treaty for the Establishment of the East African Community Article 48
  • Treaty for the Establishment of the East African Community Article 50
  • Treaty for the Establishment of the East African Community Article 52
  • Treaty for the Establishment of the East African Community Article 126
  • Vienna Convention on the Law of Treaties Article 26
  • Vienna Convention on the Law of Treaties Article 27
  • Vienna Convention on the Law of Treaties Article 31
  • The Treaty for the Establishment of the East African Community (Election of Members of the Assembly) Rules 2001 r.4
  • The Treaty for the Establishment of the East African Community (Election of Members of the Assembly) Rules 2001 r.5
  • The Treaty for the Establishment of the East African Community (Election of Members of the Assembly) Rules 2001 r.6
  • The Treaty for the Establishment of the East African Community (Election of Members of the Assembly) Rules 2001 r.7
  • Constitution of the Republic of Kenya s.33
  • Constitution of the Republic of Kenya s.37
  • Constitution of the Republic of Kenya s.38
  • Constitution of the Republic of Kenya s.60
  • Constitution of the Republic of Uganda Article 137

Cases cited (12)

  • Auto Garage v Motokov (No.3) (1971) EA 514
  • Jaramogi Oginga Odinga v Zachariah R. Chesoni & Attorney General (Misc. Application No. 602 of 1992)
  • Ismail Serugo v Kampala City Council & Attorney General (Constitutional Appeal No. 2 of 1998)
  • Maritime Electric Co. Ltd v General Dairies Ltd (1937) 1 All ER 748
  • Southend-on-Sea Corporation v Hodgson (Wickford) Ltd (1961) 2 All ER 46
  • T. Tarmal Industries v Commissioner of Customs and Excise (1968) EA 471
  • St. Aubyn (LM) v A.G. (1951) 2 All ER 473
  • Indira Sawhney v Union of India JT (1999) (9) SC 557
  • Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1
  • Flaminio Costa v ENEL [1964] ECR 585
  • Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629
  • R v Secretary of State for Transport, ex p. Factortame Ltd (No.2) [1991] 1 AC 603

Full judgment

↓ Download PDF

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

Nyong'o and Others v A.G. of Kenya and Others (Reference 1 of 2006) [2007] EACJ 6 (2 March 2007)
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.