Ugandan party appeals against dropped case

THE Appellate Division for East African Court of Justice (EACJ) in Arusha has heard an appeal filed by the Democratic Party of Uganda against the Secretary General of the East African Community (EAC) and the Attorney Generals of the Republics of Uganda, Kenya, Rwanda and Burundi.

The appeal, challenges the decision of the First Instance Division of 26th November 2013 that dismissed the case.

The case principally challenges the alleged failure by the Republics of Uganda, Kenya and Burundi (Respondents) to make declarations in acceptance of the competence of the Arushabased African Court in line with Articles 5(3) and 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights, on the Establishment of an African Court on Human and People’s Rights.

It is urged that the alleged failure to do so is an infringement of Articles 5, 6, 7(2), 8(1) (c), 126 and 130 of the Treaty for the Establishment of the East African Community and Articles 1, 2, 7, 13, 26, 62, 65 and 66 of the African Charter on Human and People’s Rights and the aforesaid Protocol.

Mr Justin Semuyaba Counsel for the appellant submitted that, the lower Court erred in its decision by stating that it has no jurisdiction to entertain the said matter.

He also submitted that, the African Charter is part and parcel of the EAC Treaty under Article 6 (d) and thus the Treaty allows the Court to look at the Charter. He further stated that, partner states surrendered their sovereignty when entering into the Treaty.

He also stated that, the EAC Partner States by coming together under the EAC Treaty undertook an obligation to observe all international obligations. Further arguing that, by upholding jurisdiction of the African Court, the 2nd, 3rd and 5th Respondents were infringing provisions of Article 6 (d) of the EAC Treaty.

Dr Anthony Kafumbe, for the EAC Secretary General (1st Respondent) stated that, the lower court arrived at a correct decision and it is proper for the Appellate Division to uphold the decision.

It was the Counsel’s submission that, Articles 23 and 27 of the EAC treaty set out the role of the court and its jurisdiction respectively, which is to ensure adherence to law in the interpretation and application of and compliance with the Treaty.

To this he added that the Court did not operate outside that framework. He also said that delay caused no violation because the Protocol doesn’t set time limit to deposit their declarations.

Dr Kafumbe also stated that Article 67(3) of the Treaty establishes the Office of the Secretary General and spells out its functions and there is no provision that says the bearer of the office has to supervise Partner States in meeting their obligations.

He further added that Article 29 of the Treaty gives the Secretary General a margin of appreciation; therefore, he has to be convinced that a Partner State has failed to fulfill its obligations under the Treaty.

Dr Kafumbe also submitted that Article 130 of the Treaty does not create obligations of the Secretary General to ensure that Partner States honour their commitments in respect of multinational and international organisations.

Dr Kafumbe said there was no violation of the Treaty and urged the Court to uphold the decision of the lower Court and overrule the appeal.

Mr Elisha Bafirawa Counsel for Uganda (2nd Respondent) submitted that, the language of Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights is very clear that no time is spelt out for a State Party to deposit a declaration accepting the competence of the African Court.

Source: Daily News (29/01/2015).