Wakilii

Shirima v A.G. of Burundi and Ors. (Application 11 of 2016)

East African Court of Justice · [2017] EACJ 112 · 2017 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for interlocutory injunction arising from Reference No. 8 of 2016
Decision
Application dismissed; matter to proceed to hearing of Reference No. 8 of 2016

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that it has jurisdiction under Articles 27 and 30(1) of the EAC Treaty to determine whether Partner States violated the Treaty by signing the Economic Partnership Agreement. However, the application for interlocutory injunction was dismissed because the applicant failed to establish that he would suffer irreparable injury that could not be compensated by damages. The Court found a triable issue but noted that the 18th Summit decision meant remaining Partner States would not sign the EPA pending clarification, rendering the injunction unnecessary.

Outcome

Application dismissed; matter to proceed to hearing of Reference No. 8 of 2016

Facts

The applicant, a Tanzanian citizen, sought interlocutory orders to prevent EAC Partner States from signing or implementing the Economic Partnership Agreement between the East African Community and the European Union. Negotiations for the EPA concluded in October 2014 with all EAC Partner States initialling the agreement. Kenya and Rwanda signed the EPA on 1 September 2016, and Kenya ratified it on 20 September 2016. The 17th Extraordinary EAC Summit on 8 September 2016 requested three months to address concerns of remaining Partner States before signing as a bloc. The applicant alleged that individual signing violated the EAC Treaty and sought orders restraining further signatures and processes. The 18th Summit on 20 May 2017 confirmed that remaining Partner States would not sign pending clarification of identified issues.

Issues

  1. Whether the Court has jurisdiction to hear and determine the application.
  2. Whether the application discloses a cause of action against the 5th Respondent.
  3. Whether the application is incompetent for lack of a proper supporting affidavit.
  4. Whether the application meets the criteria for grant of an interlocutory injunction.

Orders

  • The order sought to restrain the 1st, 4th, 5th and 6th Respondents from signing the EAC-EU EPA is not granted.
  • The order sought directing the 2nd and 3rd Respondents to restrain from any pending procedures and/or processes over the EPA they have signed is not granted.
  • The order sought directing the 7th Respondent to withdraw forthwith any negotiations initiated with the European Union is not granted.
  • Costs of the Application to abide the outcome of Reference No. 8 of 2016.

Rules and key headnotes

Jurisdiction of the East African Court of Justice — Treaty Interpretation
The East African Court of Justice has jurisdiction under Articles 27 and 30(1) of the EAC Treaty to determine whether a Partner State's action in signing an international agreement violates provisions of the Treaty, notwithstanding that treaty-making is within the sovereign mandate of States under international law.
Interlocutory Injunctions — Three-Part Test for Grant
For an interlocutory injunction to be granted, an applicant must establish: (i) a prima facie case with a probability of success; (ii) that irreparable injury would be suffered which could not adequately be compensated by damages; and (iii) if the court is in doubt, that the balance of convenience favours the grant.
Interlocutory Injunctions — Irreparable Injury — Burden of Proof
An applicant seeking an interlocutory injunction must establish with specificity the nature of the irreparable injury that would be suffered if the injunction is not granted. General assertions of regional economic harm without demonstrating a direct link to the applicant's individual injury are insufficient.
Cause of Action — Live Dispute Requirement
A cause of action exists where there is a live issue to be determined. An application seeking to restrain Partner States from signing an agreement discloses a cause of action against all respondent Partner States, including those that have not yet signed, where the signing process is ongoing and the applicant alleges Treaty violations.
Affidavits — Effect of Factual Error
A single factual error in a supporting affidavit does not render the entire affidavit incompetent or require it to be struck out. The court may disregard irrelevant or erroneous facts and consider the remaining material facts in determining the application.

Legislation cited (12)

  • Treaty for the Establishment of the East African Community Article 6
  • Treaty for the Establishment of the East African Community Article 11
  • 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 30
  • Treaty for the Establishment of the East African Community Article 39
  • Protocol on the Establishment of the EAC Customs Union Article 37
  • Protocol on the Establishment of the EAC Common Market Article 37(1)
  • East African Court of Justice Rules of Procedure 2013 Rule 21
  • East African Court of Justice Rules of Procedure 2013 Rule 73
  • Vienna Convention on the Law of Treaties Article 6
  • Vienna Convention on the Law of Treaties Article 31

Cases cited (15)

  • Giella v Cassman Brown & Co Ltd [1973] EA 360
  • East African Society Organization Forum v Attorney General of the Republic of Burundi & 2 Others (Application No. 5 of 2015)
  • Democratic Party v Secretary General of the East African Community & Others (Appeal No. 1 of 2014)
  • Samuel Kamau Macharia and Another Vs. Kenya Commercial Bank, eKLR
  • Owners of the Motor Vessel 'LilianS' v Caltex Oil (K) Ltd (1989) KLR 1
  • East African Centre for Trade Policy and Law v Secretary General of the East African Community (Reference No. 9 of 2012)
  • Prof Peter Anyang' Nyong'o & 10 Others v Attorney General of Kenya & 5 Others (Reference No. 1 of 2006)
  • Auto Garage v Motokov (1971) EA 514
  • Attorney General of the United Republic of Tanzania v African Network for Animal Welfare (Appeal No. 3 of 2014)
  • Alcon International Ltd v Standard Chartered Bank of Uganda & 2 Others (Appeal No. 3 of 2013)
  • Mbidde Foundation Ltd & Another v Secretary General of the East African Community (Application No. 5 of 2014)
  • Kidodo Sugar Estate & 5 Others v Tanga Petroleum C Ltd (Civil Application No. 110 of 2009)
  • Mary Ariviza v Attorney General of the Republic of Kenya and Secretary General of the East Africa Community (Application No. 3 of 2010)
  • Plaxeda Rugumba v Secretary General of the East African Community & Attorney General of Rwanda (Reference No. 8 of 2010)
  • Masenge Venant v Attorney General of the Republic of Burundi (Reference No. 9 of 2012)

Full judgment

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

Shirima v A.G. of Burundi and Ors. (Application 11 of 2016) [2017] EACJ 112 (6 July 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.