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Sebalu v Secretary General of East African Community and Others (Reference No. 1 of 2010)

East African Court of Justice · [2011] EACJ 6 · 2011 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference brought before the East African Court of Justice seeking interpretation of the Treaty for the Establishment of the East African Community and declarations regarding delay in operationalising the extended appellate jurisdiction of the EACJ
Decision
Reference partly allowed with declaratory orders made against the 1st and 2nd Respondents. 3rd and 4th Respondents struck off.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that the Reference disclosed a cause of action under Article 30 of the Treaty. Article 27 does not currently confer appellate jurisdiction on the EACJ over decisions of national supreme courts. The Secretary General and the Attorney General of Uganda failed to discharge their obligations regarding conclusion of the protocol to operationalise extended jurisdiction. The delay in extending the EACJ's jurisdiction contravenes the principles of good governance under Article 6(d) of the Treaty. The 3rd and 4th Respondents were not nominal respondents and were struck off.

Outcome

Reference partly allowed with declaratory orders made against the 1st and 2nd Respondents. 3rd and 4th Respondents struck off.

Facts

The Applicant lost an election petition in the High Court of Uganda, then lost appeals in the Court of Appeal and Supreme Court of Uganda. Dissatisfied, he sought to appeal to the East African Court of Justice. However, Article 27(2) of the Treaty provides that the EACJ shall have appellate jurisdiction only after the Council of Ministers concludes a protocol to operationalise such extended jurisdiction. A draft protocol was prepared in 2005 and subjected to consultative processes. By 2010, the Republic of Uganda (2nd Respondent) had not submitted written comments on the draft despite multiple deadlines. The Applicant brought this Reference alleging that the delay by the Secretary General (1st Respondent) and Uganda (2nd Respondent) in concluding the protocol infringed the Treaty's principles of good governance.

Issues

  1. Whether or not the Reference discloses a cause of action
  2. Whether Article 27 of the Treaty confers appellate jurisdiction on the East African Court of Justice over the decision of the Supreme Court of Uganda in Election Petition Appeal No. 6 of 2009
  3. Whether the 1st Respondent and the 2nd Respondent have discharged their respective obligations regarding the conclusion of a protocol to operationalise extended jurisdiction of the EACJ
  4. Whether the delay to extend appellate jurisdiction of the EACJ contravenes the fundamental principles of good governance, democracy, rule of law, social justice and human rights stipulated in the Treaty
  5. Whether the 3rd and 4th Respondents are nominal respondents
  6. Whether or not the parties are entitled to remedies

Orders

  • Declared that the failure or delay by the 1st Respondent to refer the matter of the delay by the 2nd Respondent to submit comments on the draft Protocol to the Council of Ministers is an infringement of Articles 29, 7(2), 8(1)(c) and 6(d) of the Treaty.
  • Declared that the inaction by the 2nd Respondent is an infringement of Articles 6(d), 7(2) and 8(1)(c) of the Treaty.
  • Declared that quick action should be taken by the East African Community to conclude the protocol to operationalise the extended jurisdiction of the EACJ under Article 27 of the Treaty.
  • Costs awarded to the Applicant as against the 1st and 2nd Respondents.
  • 3rd and 4th Respondents struck off from the Reference with costs to them against the Applicant.

Rules and key headnotes

Administrative Law — Treaty Interpretation — Cause of Action under Treaty Provisions
A cause of action created by treaty or statute does not require the claimant to show a right or interest that was infringed or damage suffered. Under Article 30(1) of the Treaty for the Establishment of the East African Community, it is sufficient if it is alleged that the matter complained of infringes a provision of the Treaty in a relevant manner.
Statutory Interpretation — Treaty Provisions — Appellate Jurisdiction — Future Conferment
Article 27(2) of the Treaty for the Establishment of the East African Community provides for appellate jurisdiction to be conferred on the EACJ in the future via a protocol which is yet to be concluded. Until such protocol is concluded, the EACJ does not have appellate jurisdiction over decisions of national supreme courts.
Administrative Law — Good Governance — Accountability — Delay in Discharging Treaty Obligations
Where a Partner State delays or fails to discharge its obligations under a treaty without reasonable explanation, and the Secretary General fails to invoke enforcement mechanisms under the treaty, such delay constitutes an infringement of the principles of good governance, including accountability, as stipulated in Article 6(d) of the Treaty.
Constitutional Law — Regional Integration — Sovereignty — Ceding of Sovereignty to Community Organs
By the nature of the objectives of regional integration, each Partner State is expected to cede some amount of sovereignty to the Community and its organs, albeit in limited areas, to enable them to play their role. National activities of Partner States touching or impacting on the Community must accord due reverence to the Treaty, which constitutes East African Community law.
Administrative Law — Treaty Obligations — Article 8(1)(c) — Duty to Abstain from Measures Jeopardising Treaty Objectives
Article 8(1)(c) of the Treaty obligates Partner States to abstain from measures likely to jeopardise the achievement of the objectives of the Community or the implementation of the Treaty. Delay by a Partner State in submitting comments on a draft protocol to operationalise extended jurisdiction of the EACJ constitutes such a measure and amounts to non-compliance with treaty obligations.
Administrative Law — Nominal Parties — Joinder of Parties — Premature Joinder
Where parties have no role in the subject matter of a reference and no prayers are sought against them, their joinder as respondents is premature even if they might have a beneficial interest in potential future proceedings. Such parties may be struck off with costs.

Legislation cited (26)

  • Treaty for the Establishment of the East African Community Article 4
  • 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 6(d)
  • Treaty for the Establishment of the East African Community Article 7(2)
  • Treaty for the Establishment of the East African Community Article 8(1)(c)
  • Treaty for the Establishment of the East African Community Article 8(2)
  • Treaty for the Establishment of the East African Community Article 14(3)
  • Treaty for the Establishment of the East African Community Article 15
  • 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 27(1)
  • Treaty for the Establishment of the East African Community Article 27(2)
  • 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 30(1)
  • Treaty for the Establishment of the East African Community Article 35A
  • Treaty for the Establishment of the East African Community Article 40
  • Treaty for the Establishment of the East African Community Article 67
  • Treaty for the Establishment of the East African Community Article 67(3)
  • Treaty for the Establishment of the East African Community Article 140(4)
  • East African Court of Justice Rules of Procedure Rule 1(2)
  • East African Court of Justice Rules of Procedure Rule 21
  • Rules of Procedure for the Council of Ministers Rule 7(5)
  • African Charter on Human and People's Rights

Cases cited (7)

  • Prof. Peter Anyang' Nyong'o and Others v Attorney General of Kenya and Others (Reference No. 1 of 2006)
  • Auto Garage v Motokov (No. 3) [1971] EA 514
  • Semler v Murphy [1967] 1 Ch 183
  • White and Another v Butt [1909] 1 KB 50
  • Election Petition No. 25 of 2006 in the High Court of Uganda
  • Election Petition Appeal No. 1 of 2008 in the Court of Appeal of Uganda
  • Election Petition Appeal No. 6 of 2009 in the Supreme Court of Uganda

Full judgment

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

Sebalu v Secretary General of East African Community and Others (Reference No. 1 of 2010) [2011] EACJ 6 (30 June 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.