Wakilii

Zziwa v Secretary General of The East African Community (Application 1 of 2016)

East African Court of Justice · [2016] EACJ 122 · 2016 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for witness summons arising from Reference No. 17 of 2014
Decision
Application for witness summons dismissed; matter to proceed to hearing of Reference No. 17 of 2014 without the requested summons

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court dismissed the application for witness summons. Held that summons cannot be issued to voluntary witnesses who have already agreed to testify. Further held that summons cannot be used to circumvent or appeal a decision of the East African Legislative Assembly made under Section 20(1) of the EALA (Powers and Privileges) Act 2003, which requires special leave before members or officers can give evidence elsewhere regarding Assembly proceedings or documents. The Court cannot by its Rules of Procedure overturn a decision of the Assembly made pursuant to Community Law without first declaring that law a violation of the Treaty.

Outcome

Application for witness summons dismissed; matter to proceed to hearing of Reference No. 17 of 2014 without the requested summons

Facts

The Applicant, a former Speaker of the East African Legislative Assembly, filed Reference No. 17 of 2014 challenging her removal as Speaker. She sought witness summons to compel herself and three other Assembly members to testify and produce documents. The Applicant had written to the Speaker of the Assembly on multiple occasions seeking leave under Section 20(1) of the EALA (Powers and Privileges) Act 2003 to adduce evidence and call witnesses. The Speaker directed her to seek leave from the Assembly during plenary meetings. A motion for leave was tabled on 3rd December 2015 but was defeated by a majority vote of 23 against, with 3 abstentions and 5 in favour. The Applicant then applied to the Court for summons, arguing that the Assembly would never grant her the required leave and that without the orders sought she could not properly prosecute her Reference.

Issues

  1. Whether the Court should issue witness summons to the Applicant and her witnesses to testify in Reference No. 17 of 2014.
  2. Whether the Court should on its own motion summon witnesses to give evidence or produce documents essential for the just determination of Reference No. 17 of 2014.
  3. Whether the Court can issue summons to compel production of documents where the East African Legislative Assembly has refused leave under Section 20(1) of the EALA (Powers and Privileges) Act 2003.

Orders

  • Application dated 22nd January 2016 dismissed.
  • Costs to abide the outcome of Reference No. 17 of 2014.

Rules and key headnotes

Witness Summons — Voluntary Witnesses — Requirement of Compulsion
Witness summons under Rule 56 of the East African Court of Justice Rules of Procedure are by their nature orders issued to compel the attendance of a person at a judicial proceeding. For summons to be issued, it must be shown that the witnesses are either unwilling or reluctant to testify. Summons cannot be issued to voluntary witnesses who have already agreed to testify.
Legislative Privilege — Separation of Powers — Judicial Review of Assembly Decisions
The East African Court of Justice cannot by its Rules of Procedure purport to ignore, circumvent or overturn a decision of the East African Legislative Assembly made pursuant to Section 20(1) of the EALA (Powers and Privileges) Act 2003 without first declaring that Section a violation of the Treaty. The Court can only interfere with decisions of the Assembly if they are in violation of the Treaty.
Separation of Powers — Checks and Balances — Limits on Judicial Power
The East African Community was created with the principle of separation of powers firmly in place. None of the organs of the Community can lawfully direct the work of another organ by virtue of the principles of separation of powers and checks and balances entrenched in the Treaty. The Court cannot use witness summons as a means to circumvent or defeat a decision of the Assembly made under Community Law.
Court's Power to Summon Witnesses on Own Motion — Timing and Circumstances
While Rule 56(3) grants the Court power to summon any person to give evidence and produce any document if such evidence or document is essential for the just determination of any matter before it, the Court will not exercise this power at an early stage of proceedings to demand documents from the Assembly contrary to Section 20(1) of the EALA (Powers and Privileges) Act 2003. Such power may be exercised at a later stage after evidence has been tendered by parties and a lacuna in evidence is noted by the Court.
Legislative Privilege — Scope of Protected Evidence
Section 20(1) of the EALA (Powers and Privileges) Act 2003 creates a privilege over minutes, oral evidence, documentation, proceedings or examination laid before or arising in the Assembly or a committee thereof. Members or officers of the Assembly may adduce evidence before the Court that has nothing to do with such privileged material. Reference may be made to minutes or documentation placed before the Assembly without adducing the contents thereof, though proof of such documents would necessitate their production with the requisite leave of the Assembly.

Legislation cited (14)

  • Treaty for the Establishment of the East African Community Article 20
  • Treaty for the Establishment of the East African Community Article 44
  • East African Court of Justice Rules of Procedure Rule 1(2)
  • East African Court of Justice Rules of Procedure Rule 21(1)
  • East African Court of Justice Rules of Procedure Rule 21(2)
  • East African Court of Justice Rules of Procedure Rule 21(5)
  • East African Court of Justice Rules of Procedure Rule 56(1)
  • East African Court of Justice Rules of Procedure Rule 56(2)
  • East African Court of Justice Rules of Procedure Rule 56(3)
  • East African Court of Justice Rules of Procedure Rule 56(4)
  • East African Court of Justice Rules of Procedure Rule 56(5)
  • East African Court of Justice Rules of Procedure Rule 56(6)
  • EALA (Powers and Privileges) Act 2003 s.20
  • EALA (Powers and Privileges) Act 2003 s.20(1)

Cases cited (8)

  • Zziwa v Secretary General of The East African Community (Reference No. 17 of 2014)
  • AG of the Republic of Uganda v East African Law Society & Anor (Application No. 17 of 2014)
  • African Network for Animal Welfare v Attorney General of the Republic of Kenya (Reference No. 9 of 2010)
  • Prosecutor vs. William S. Ruto and Jushua Arap Sang ICC Case No.1/09-01/11
  • United States vs. Nixon 418 U.S. 683, 94 S.Ct 3090 41 L. Ed 2d 1039 (1974)
  • Calist Andrew Mwatela and others v East African Community (Application No. 1 of 2005)
  • Zziwa v Secretary General of The East African Community (Appeal No. 7 of 2015)
  • Hon Sitenda Sebalu v Secretary General of the East African Community (Reference No. 8 of 2012)

Full judgment

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

Zziwa v Secretary General of The East African Community (Application 1 of 2016) [2016] EACJ 122 (24 June 2016)
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.