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Walusumbi and Others v A.G. of Republic Uganda (Reference 8 of 2013)

East African Court of Justice · [2015] EACJ 80 · 2015 Reference Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to the East African Court of Justice challenging the legality of the Summit's directive to commence negotiations with the Republic of South Sudan for membership in the East African Community
Decision
Reference dismissed with costs to the Respondents

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 it had jurisdiction to entertain a reference challenging the Summit's directive to commence negotiations with South Sudan for EAC membership. The Court found that a cause of action was disclosed under Article 30(1) of the Treaty where applicants alleged infringement of Treaty provisions by a decision taken during an ongoing process. However, the Court held that the Summit's directive to commence negotiations fell within its discretionary mandate under Article 3(2) of the Treaty and the Protocol for Admission, and did not contravene the Treaty's principles on good governance and human rights. The reference was dismissed.

Outcome

Reference dismissed with costs to the Respondents

Facts

The Applicants, Ugandan traders operating in South Sudan through the Uganda Traders Association of South Sudan Ltd, challenged the East African Community Summit's directive of 30 November 2012 authorising negotiations with South Sudan for EAC membership. South Sudan had applied to join the EAC on 11 November 2011. The Applicants alleged that South Sudan committed human rights violations against Ugandan traders, including rape, assault, torture, extrajudicial killings, false imprisonment, and confiscation of merchandise. They relied on a report by their association and a Verification Committee report which found that South Sudan did not adhere to universally accepted principles of good governance, democracy, rule of law, observance of human rights, and social justice. The Applicants sought a declaration that South Sudan was not fit for EAC membership and an order preventing the Respondents from granting such membership.

Issues

  1. Whether the East African Court of Justice is vested with jurisdiction to entertain the Reference.
  2. Whether the Reference discloses a cause of action taking into account the provisions of Article 30(1) of the Treaty.
  3. Whether the ongoing process of considering the application of the Republic of South Sudan to join the East African Community violates the provisions of Articles 3(a), (b), (c), (e), (f), 6(d), 7(2) and 8(1)(c) of the Treaty.
  4. Whether the Applicants are entitled to the orders sought.

Orders

  • Reference dismissed.
  • Costs awarded to the Respondents.

Rules and key headnotes

Jurisdiction of East African Court of Justice — References under Article 30(1) — Interpretation and Application of Treaty Provisions
The East African Court of Justice has jurisdiction under Articles 23(1), 27(1) and 30(1) of the Treaty to entertain a reference challenging whether directives or decisions of the Summit infringe Treaty provisions, even where the matter concerns an ongoing process of considering membership of a foreign country.
Cause of Action under Article 30(1) — Statutory Cause of Action — Allegation of Treaty Infringement
Under Article 30(1) of the Treaty, a cause of action is established by alleging that a matter complained of infringes a provision of the Treaty in a relevant manner. Article 30(1) envisages a statutory cause of action, not a cause of action as ordinarily known in tort or contract. It is not necessary to show a right or interest that has been infringed or damage suffered as a consequence.
Prematurity of References — Decisions Taken During Ongoing Processes — Actionability under Article 30(1)
Article 30(1) of the Treaty explicitly distinguishes between a decision and an action, delineating each as a basis for a cause of action. It does not draw any distinction between a final decision and a decision taken in the course of a process. A decision taken in the course of an ongoing process, subject to proof of intrinsic circumstances, is just as actionable as a final decision taken upon conclusion thereof.
Treaty Interpretation — Restrictive vs Liberal Interpretation — Purpose of Provisions
A restrictive interpretation of Treaty provisions that would exclude from the application of Article 30(1) infringement by an organ of the Community is not based on sound ground and would defeat the purpose of ensuring compliance with Treaty provisions and empowering residents to seek judicial adjudication where there are allegations of non-compliance.
Admission of Foreign Countries to EAC — Discretionary Mandate of Summit — Scope of Negotiations under Article 3(2)
Article 3(2) of the Treaty provides for negotiations with a foreign country to be undertaken upon such terms and in such manner as the Partner States may determine. The Summit, acting within its discretionary mandate, may issue a directive for negotiations to commence with a foreign country. The reference to negotiations in Article 3(2) is not restricted to determining the type of membership but extends to all matters the Summit deems appropriate within the admission process.

Legislation cited (14)

  • Treaty for the Establishment of the East African Community Article 3(2)
  • Treaty for the Establishment of the East African Community Article 3(3)
  • Treaty for the Establishment of the East African Community Article 3(4)
  • Treaty for the Establishment of the East African Community Article 3(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 23(1)
  • 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 30(1)
  • Protocol for Admission to the East African Community Article 3(1)
  • Protocol for Admission to the East African Community Article 4
  • East African Court of Justice Rules of Procedure 2013 Rule 24

Cases cited (13)

  • Samuel Mukira Mohochi v Attorney General of the Republic of Uganda (EACJ Reference No. 8 of 2021)
  • James Katabazi and 22 Others v Secretary General of the East African Community and Attorney General of Uganda (EACJ Reference No. 10 of 2007)
  • Hon.Abdallah Macciado Ahmed vs Sokoto State House of Assembly and Anor (2004) 44 WRN 52
  • R vs. the Secretary for the Home Department ex Parte Bentley (1994) 12, 13, 349
  • Samuel Muigai Nga'ng'a v Minister for Justice, National Cohesion & Constitutional Affairs and Another [2013] eKLR
  • Oetjen vs Central Leather Company 246 U.S 297
  • Hon. Sitenda Sebalu v Secretary General of the EAC and 3 Others (EACJ Reference No. 1 of 2010)
  • Prof Peter Anyang Nyong'o and Others v Attorney General of Kenya and Others (EACJ Reference No. 1 of 2008)
  • Legal Brains Trust (LBT) v Attorney General of Uganda (EACJ Appeal No. 4 of 2012)
  • Attorney General of the Republic of Kenya v Independent Medical Legal Unit (EACJ Appeal No. 1 of 2011)
  • The East African Law Society and 4 Others v Attorney General of the Republic of Kenya and 3 Others (EACJ Reference No. 3 of 2007)
  • Plaxeda Rugumba v Secretary General of the EAC and Another (EACJ Reference No. 8 of 2010)
  • Samuel Mukira Muhochi v Attorney General of the Republic of Uganda (EACJ Reference No. 5 of 2011)

Full judgment

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

Walusumbi and Others v A.G. of Republic Uganda (Reference 8 of 2013) [2015] EACJ 80 (27 February 2015)
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.