Wakilii

Omar and Others v A.G. Republic of Kenya and Others (Application 4 of 2011)

East African Court of Justice · [2011] EACJ 12 · 2011 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for interim orders and waiver of fees arising from Reference No. 4 of 2011, with preliminary objection on limitation of time raised by 2nd Respondent
Decision
Preliminary objection dismissed; matter to proceed to hearing on the merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that alleged Treaty violations consisting of unlawful detention constitute continuous acts that cannot be subjected to mathematical computation of time for limitation purposes. Where violations form a continuous chain of events, the two-month limitation period under Article 30(2) of the EAC Treaty does not bar a reference simply because the violations commenced more than two months before filing. The preliminary objection on limitation was disallowed and the Reference was found to be properly before the Court.

Outcome

Preliminary objection dismissed; matter to proceed to hearing on the merits

Facts

The Applicants were arrested from various locations in Kenya between 22 July and 17 September 2010 by Kenyan and Ugandan police officers allegedly in collaboration with United States FBI officials. After being detained in Kenya without charge for 3 to 6 days, they were transferred across the border to Uganda in what is described as rendition. Upon transfer to Uganda, the Applicants were moved between various locations including forests, police stations, military barracks and prisons, and were ultimately detained at Luzira Prison, Kampala, where they were arraigned on terrorism charges. The Applicants filed Reference No. 4 of 2011 on 9 June 2011, alleging that their arrest, transfer and detention infringed the EAC Treaty. The 2nd Respondent raised a preliminary objection that the Reference was time-barred under Article 30(2) of the Treaty, which requires proceedings to be instituted within two months of the act complained of or of the day the complainant became aware of it.

Issues

  1. Whether Reference No. 4 of 2011 was filed within the two-month limitation period prescribed by Article 30(2) of the Treaty for the Establishment of the East African Community.
  2. Whether the alleged Treaty violations constitute continuing acts that cannot be subjected to mathematical computation of time for limitation purposes.

Orders

  • Preliminary objection disallowed.
  • Reference No. 4 of 2011 found to be properly before the Court.
  • Costs to be in the cause.

Rules and key headnotes

Limitation of Time — Continuing Violations — Treaty Infringement Proceedings
Where alleged Treaty violations consist of unlawful detention and constitute a continuous chain of acts, such violations cannot be subjected to mathematical computation of time for purposes of the limitation period under Article 30(2) of the Treaty for the Establishment of the East African Community.
Unlawful Detention — Nature as Continuing Violation
Detention is not a single happening but a constant state of affairs constituting a continuing deprivation of a person's liberty. Unlawful detention continues to be an unlawful act on each succeeding day until it is stopped, and therefore constitutes a continuing violation for limitation purposes.
Treaty Interpretation — Object and Purpose
The object and purpose of Article 30(2) of the EAC Treaty could not have been to deny people in East Africa the right to challenge continuing Treaty infringements of which they are victims merely because more than two months have elapsed since such infringements started.
Preliminary Objections — Limitation — Continuing Acts
Where matters complained of are failures in a whole continuous chain of events from when alleged violations started until a claimant decides that a respondent has failed to provide any remedy, such action or omission cannot be limited by mathematical computation of time under Article 30(2) of the EAC Treaty.

Legislation cited (4)

  • Treaty for the Establishment of the East African Community Article 30(2)
  • Treaty for the Establishment of the East African Community Article 9
  • East African Court of Justice Rules of Procedure Rules 1(2), 4, 21, 118
  • Vienna Convention on the Law of Treaties Article 31(1)

Cases cited (1)

  • Independent Medical Legal Unit v The Attorney General of Kenya and 4 Others (Reference No. 3 of 2010)

Full judgment

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

Omar and Others v A.G. Republic of Kenya and Others (Application 4 of 2011) [2011] EACJ 12 (1 December 2011)
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.