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JUDGMENT
[1] This is a reference under Article 30 of the Treaty for the Establishment
of the East African Community (the Treaty), instituted on 7th December 2005
by three Members of the East African Legislative Assembly, namely: Calist
Andrew Mwatela, Lydia Wanyoto Mutende and Isaac Abraham Sepetu (the
applicants), in an application by Notice of Motion pursuant to rules 1 (2)
and 20 of the East African Court of Justice Rules of Procedure (the Court
Rules). The respondent is the East African Community which under Article 4
of the Treaty, is a body corporate with inter alia power to sue and be sued
in its own name.
[2] In their application, the applicants challenge the validity of the
meeting of the Sectoral Council on Legal and Judicial Affairs (the Sectoral
Council) held on 13th to 16th September 2005 and the decisions taken by the
said meeting in relation to Bills pending before the East African
Legislative Assembly (the Assembly), and they seek an order by the Court
that the report of the Sectoral Council meeting held on 13th to 16th
September 2005 is null and void ab initio and all decisions, directives and
actions contained in or based on it are null and void.
[3] In the response to the application the respondent opposes the
application and supports the validity of the Sectoral Council's impugned
decisions. Both parties to the application opted to rely on the pleadings
and the supporting affidavits and the reports and correspondence which were
annexed thereto and so no oral evidence was adduced.
[4] It was common ground that what gave rise to the dispute were four
Private Member's Bills, which in November 2004 were pending legislation in
the Assembly. The Bills are the East African Community Trade Negotiations
Bill (2004) (the Trade Negotiations Bill), The East African Community Budget
Bill (the Budget Bill), The East African Immunities and Privileges Bill (the
Immunities and Privileges Bill) and The Inter-University Council for East
Africa Bill (the Inter-University Council Bill).
[5] The Council of Ministers (the Council) at its 9th meeting held on 24th
November 2004, decided that policy oriented Bills such as those that have
implications on the Partner States' sovereign interest and on the budgetary
aspect of the Community, ought to be submitted to the Assembly by the
Council under Article 14 (3) (b) of the Treaty as opposed to being submitted
as Private Member's Bills under article 59 of the Treaty. The Council
therefore decided to assume responsibility for the four pending Bills for
consideration and submission to the Assembly. We were not able to ascertain
the extent of consultation that took place between the Council and the
Assembly before the Council decided to assume responsibility over the Bills.
But we found out that in November 2004 and again in February 2005, the
Chairperson of the Council requested and the Assembly agreed to postpone
debate on the Trade Negotiations Bill.
[6] During the budget debate in the May 2005 session of the Assembly, some
issues connected with the pending Private Member's Bills were raised as a
result of which the Chairperson of Council proposed a joint meeting between
the Assembly and the Council. Before that meeting was held, the Council held
its 10th meeting on 4t 1 to 8 August 2005, at which it decided that
development of legislation on trade negotiation be stayed pending conclusion
of a consultancy study into all implications of such legislation, and that
the Inter-University Council Bill be submitted to the Sectoral Council for
legal input and subsequent submission to the Assembly.
[7] The joint meeting, referred to as the High Level Retreat, was held at
Ngurdoto Mountain Lodge on 10th and 11th August 2005. At the conclusion of
the meeting, the Chairperson undertook that the revised Inter-University
Council Bill and the Immunities and Privileges Bill would be submitted to
the Assembly session due to start on 19th November 2005. However the said
Bills were not submitted to the Assembly as undertaken by the Chairperson
because the Sectoral Council decided otherwise.
[8] The Sectoral Council held a meeting on 13th to 16th September 2005, at
which it decided that protocols, within the meaning of Article 151 of the
Treaty, rather than legislation enacted by the Assembly, were sufficient to
provide for the Inter-University Council and for providing immunities and
privileges for the Community. Apparently a Protocol for the establishment of
the Inter-University Council was concluded on 13th September 2002, and had
been ratified by Tanzania and Uganda and only awaited ratification by Kenya;
and a draft Protocol on immunities and privileges for the Community, its
organs and institutions and persons in its service was in process of
consultation and had been considered by the Permanent Secretaries in
February 2005.
[9] The Sectoral Council observed that the contents of the Bills were
respectively similar to the provisions of the said Protocols and accordingly
it decided to advise the Council to withdraw the two Bills from the
Assembly. In furtherance of these decisions, the Sectoral Council (a) urged
that the Ministers of the Partner States responsible for Foreign Affairs
should urgently meet to consider and conclude the Protocol on Immunities and
Privileges so as to bring it into force by 1st January 2006; and (b)
requested that the Chairperson of the Council should inform the Speaker of
the Assembly of these decisions.
[10] Two things followed. On 16th September 2005 the Secretary General of
the Community wrote to the Speaker informing him, inter alia, that the
Council had decided to withdraw from the legislative business of the
Assembly the Immunities and Privileges Bill and the Inter-University Council
Bill. Secondly according to the Official Report of Proceedings of the
Assembly, on 27th September 2005, Mr. John Koech, a Member of the Council,
apparently on behalf of the Chairperson, made a Ministerial Statement from
the floor of the Assembly, recalling the Council decision at its 9th Meeting
held on 24th November 2005, to assume responsibility of the four Bills, its
subsequent request to the Speaker to defer consideration of the Bills until
policy input by the Council had been finalized and also gave an up date to
the Assembly on the current position of each Bill.
[11] In a nutshell he said that after receiving comments by the Partner
States on the Bills and subjecting the Bills for appropriate policy input by
the Sectoral Council, the Council was requesting that development of
legislation on trade negotiations be stayed pending conclusion of
consultation with Partner States on a consultancy study report; and that the
Community Budget Bill be stayed pending submission of the Partner States'
comments on it to relevant Sectoral Committees.
[12] He also disclosed that it was the view of the Partner States that both
the Immunities and Privileges Bill and the Inter-University Council Bill be
withdrawn from the Assembly because in either case a Protocol within the
meaning of Article 151 of the Treaty is sufficient. The Ministerial
statement was not well received and after some uncomplimentary reactions,
the Assembly resolved to have a substantive debate on the Ministerial
statement at sometime in the future. However, no Motion was subsequently
moved to initiate a debate on the matter. Instead, on 7th December 2005, the
applicants filed this application which the respondent opposed as we
indicated earlier.
[13] At the hearing, the applicants were represented by a team of counsel
led by Professor F.E. Ssempebwa and consisting of Mr. D.W. Ogalo, Mr. M.
Marando, Mr. M.S Kaggwa and Mrs. S.N.Bagalaaliwo while the respondent was
represented by a team led by Mr. W. Kaahwa, Counsel to the Community, and
consisting of Ms Makena Muchiri, Deputy Chief State Counsel (Kenya), Mr. S.N.
Tuimising, Senior State Counsel (Kenya), and Ms Isabelle Waffubwa, Legal
Officer of the Community. The East African Law Society, with leave of the
Court, appeared in the application as amicus curiae and was represented by
Mr. Tom Nyanduga, President of the Society, Mr. Don Deya, Chief Executive
Officer of the Society, Mr. Alex Mgongolwa and Mr. Nassoro Mohammed who are
members of that Society.
THE ISSUES
[14] A scheduling conference in terms of Rule 52 of the Court Rules was held
on 15th June 2005 at which time two sets of issues were submitted by the
parties. With the help of the Court the issues were merged as follows:
(1) Whether the meeting held between 13th and 16th September 2005 was a
meeting of Sectoral Council on Legal and Judicial Affairs as envisaged in
the Treaty?
(2) Whether Protocols are legally sufficient in regard to immunities and
privileges and for the formal establishment of Inter-University for East
Africa Council so as to render the enactment of the Community's Acts for
those purposes unnecessary.
(3) Whether the Inter-University Council for East Africa Bill 2004 and the
East African Community and Privileges Bill 2004 were properly withdrawn from
the Assembly.
(4) Whether or not under Article 59 a Member could move in the Assembly the
East African Community Trade Negotiations Bill 2004, East African Immunities
and Privileges Bill 2004, and the Inter- University Council for East Africa
Bill 2004.
(5) Whether the decisions of the Council are binding on the Assembly under
Article 16 of the Treaty.
(6) Whether the introduction of a Bill under Rule 64 (5) of the Assembly
Rules of Procedure constitutes the initiation of the legislative process
under those Rules.
(7) Whether or not the decision taken by the Council at its 10th Meeting
held on 4th to 8th August 2005 on the East African Trade Negotiations Bill
2004 is lawful and in accordance with the provisions of the Treaty.
(8) Whether or not the decision taken by the Sectoral Council at its meeting
on 13th to 16th September 2005 on the East African
Community Immunities and Privileges Bill 2004 and the Inter- University
Council for East Africa Bill, 2004 is lawful and in accordance with the
provisions of the Treaty.
(9) Whether the decisions of the Sectoral Council are binding on the
Assembly.
(10) Whether the Council followed the rules of the House to withdraw Bills.
(11) Whether the Council met to make the decision that was communicated to
the Speaker by the Secretary General.
(12) Whether the decision of the Sectoral Council was consistent with its
mandate.
(13) Whether the Sectoral Council on Legal and Judicial Affairs by virtue of
their decisions taken on September 13th to 16th 2005 purported to discharge
functions bestowed upon the Assembly.
(14) Whether the Council and Sectoral Council on Legal and Judicial Affairs
have usurped the powers of the Counsel to the Community, Council of
Ministers and the East African Court of Justice as provided under the
Treaty.
(15) Whether the decisions of the Council and those of the Sectoral Council
curtailed or interfered with the Assembly's functions.
(16) Whether the withdrawal of the Bills by the Council of Ministers as an
organ of the Community is subject to the Assembly's Rules.
(17) Whether it is obligatory for Council of Ministers to meet so as to
communicate the decisions of the Sectoral Council to the Assembly having
directed the Chairperson of the Council through the Secretary General.
(18) Whether the Partner States have the Prerogative on who should attend
organ meetings like those of the Council and Sectoral Council.
[15] In their respective addresses to the Court, counsel argued the issues
in clusters because they realized, quite correctly in our view, that many of
the issues touched on the same or related points. Unfortunately they did not
configure the clusters uniformly and so in considering and determining the
issues in this judgment we are not able to follow the order counsel followed
in addressing the Court. We find it more expedient to consider the issues
under the following broad headings:-
(a) Establishment of the Sectoral Council and its meeting of September 2005
(b) Status of the contentious Bills
(c) Relationship of the Council and the Assembly on legislation
[16] The applicants' challenge of the validity of the Sectoral Council is
two pronged. First they contend that the Sectoral Council was not
established as envisaged under, or in accordance with the provisions of the
Treaty. Secondly, they contend that the meeting held on 13 th to 16th
September 2005 was not a properly constituted meeting of the Sectoral
Council. The two contentions are grounded on (a) the provisions of Article
14 of the Treaty; (b) the decision of the Council at its 1st Meeting to set
up the Sectoral Council; (c) the attendance list of the meeting of the
Sectoral Council held on 13th to 16th September 2005
[17] In his submissions on the composition of the Sectoral Council,
Professor Ssempebwa pointed out that the Treaty prescribes membership of the
Council to consist of Ministers responsible for regional co-operation in
each Partner State "and such other Ministers of Partner States as each
Partner State may determine"; and that under Article 14 , the Treaty
empowers the Council to establish "from among its members " Sectoral
Councils to deal with matters that the Council may delegate or assign to
them. He argued that when in its 1st Meeting held on 8th to 13th January
2001, the Council adopted a recommendation to constitute meetings of
Attorneys-General of the Partner States into the Sectoral Council on Legal
and Judicial Affairs, it acted ultra vires its said power because it thereby
established a body that was not composed of members of the Council.
[18] Professor Ssempebwa further submitted that the Council was not
empowered to establish a Sectoral Council from among persons other than its
members. He contended that save for the Attorney General of the Republic of
Uganda who is designated a Minister under the National Constitution, the
Attorney General of the Republic of Kenya and the United Republic of
Tanzania are not similarly designated Ministers, and consequently for the
purposes of the Treaty those two were not members of the Council.
[19] In the alternative, he submitted that even if it is held that the
Sectoral Council was lawfully established, the meeting held on 13 th to 16th
September 2005 was not a lawfully constituted meeting of the Sectoral
Council. He referred to the report of that meeting in which it is indicated
that only the Attorney General of Uganda attended in person while the
Attorney General of Kenya was represented by the Solicitor General and the
Attorney General of Tanzania was represented by the Deputy
Attorney-General/Permanent Secretary, Ministry of Justice and Constitutional
Affairs, both of whom were clearly not Ministers.
[20] Professor Ssempebwa referred to two principles of interpretation of
treaties. One is that the words of a treaty must be given their natural
meaning unless that would lead to some unreasonable or absurd result. The
other is the principle of effectiveness which is that in interpreting a
Treaty the Court must ascertain its objective and give effect to it. He
submitted that the objective of the Treaty in creating the Council was to
create a strong policy making organ of the Community composed of persons
with authority from the Partner States to make binding decisions. The Treaty
does not leave room for bureaucrats taking over decision-making at that
level.
[21] On the other hand, in his opening address at the hearing, Mr. Kaahwa,
the learned Counsel to the Community, while acknowledging that the Treaty is
the grundnorm of the integration process for the Community, from which all
other legal instruments in the Community derive, subsist and draw legality,
and whose provisions must be strictly adhered to, stressed that the Treaty
establishes a framework of organs and institutions entrusted with specific
mandates whose execution must be guided by adherence to the rule of law and
the principles of harmonization. He also stressed that the Community
functions on basis of consensus as its survival depends on goodwill of the
Partner States and harmonious working relationship with the organs and
institutions and on their agreeing on all aspects of the Community's
development. He urged the Court to have these matters in mind in answering
the issues before it.
[22] In the response to the application, the respondent maintains that the
Sectoral Council meeting held on 13 th to 16th September 2005 was validly
convened and constituted and that its decisions are valid. In reply to
Professor Ssempebwa's first contention, Mr. Kaahwa argued at length that the
Attorneys-General of Kenya and Tanzania fit within the Treaty definition of
"Minister" and are therefore potential members of the Council.
[23] In the course of the submissions Mr. Kaahwa as Counsel to the Community
informed the Court from the bar that membership of the Council is not
static. In practice, the full membership is only ascertainable at the time
of meetings, when each Partner State determines its representation depending
on the agenda of the particular meeting. He argued that by virtue of Article
13 of the Treaty, each Partner State retains an executive prerogative to
designate its representative(s) on the Council in addition to its Minister
responsible for regional co-operation. He submitted that the exercise of
that prerogative may not be inquired into by the Court and cited the case of
Uganda vs. Commissioner of Prisons ex-parte Matovu [1966] EA 645.
[24] He also submitted that the prerogative has been preserved by the
Council Rules of Procedure made under Article 15 (2) of the Treaty. He
maintained that in due exercise of that prerogative, Kenya and Tanzania
designated their respective Solicitor-General and Deputy-Attorney-General
/Permanent Secretary to represent their Attorneys-General at the meeting of
the Sectoral Council, notwithstanding that they are not Ministers.
[25] In our view, Professor Ssempebwa's first contention is a departure from
the pleadings in this Reference. Throughout the pleadings what was in issue
was the composition of the meeting held on 13th and 16th September 2005. All
the averments in part 'A' of the Reference are concerned with the session of
the Sectoral Council held on 13th to 16th September 2005. Indeed when the
respondent pleaded in paragraph 5 of its Response that the Council had
established the Sectoral Council at its 1st Meeting, the applicants retorted
in paragraph 3 of their Reply to the Response thus: -
"With regard to paragraph 5 of the Response, the applicants take note that
the Council may have established Sectoral Councils as resolved in pages 28 -
34 of Annex 'A' to the Response. The Applicants aver, however, that the
establishment of such Sectoral Council does not touch on the issues raised
in the Reference as the individuals who sat on 13th - 16th September 2005
are not members of the Council under Article 14 (3) (i) of the Treaty."
(Emphasis supplied).
[26] As a result, issue 1 as framed, expressly relates to that session and
we take it that issue 18 also relates to the same session. However, the
question whether the Sectoral Council was established in accordance with the
provisions of the Treaty is a legal one and was canvassed fully. Therefore,
we have to determine it though it did not feature in the pleadings. We agree
with the counsel for the applicants that the Council is empowered under
Article 14 to establish Sectoral Councils from among its members only.
Membership of the Council under the same Article is restricted to Ministers
and the Treaty defines a Minister as follows:
"Minister" in relation to a Partner State, means a person appointed as a
Minister of the Government of that Partner State and any other person,
however entitled, who, in accordance with any law of that Partner State,
acts as or performs the functions of a Minister in that State;
[27] According to the record of the 1st Meeting of the Council held on 8th
to 13 th January, 2001 the delegations of the Partner States included their
respective Ministers responsible for regional cooperation and several others
of divers portfolios. We take it that those other Ministers were the ones
each Partner State designated as Members of the Council under Article 13. We
note that the delegation of Uganda included the Attorney-General but those
of Tanzania and Kenya did not.
[28] It was at that Meeting that the Council agreed to designate the Meeting
of the Attorneys-General of the Partner State as the Sectoral Council though
there is no indication that the Attorneys-General of Kenya and Tanzania were
Members of the Council.
[29] Furthermore, although the Attorney-General of Uganda is, by virtue of
Article 119 of the Constitution of the Republic of Uganda, a Cabinet
Minister and consequently qualified to be a Member of the Council, the
Attorney General of Tanzania is not. From our reading of Article 54(1) and
(4) of the Constitution of the United Republic of Tanzania the Attorney
General of Tanzania is not a Minister. In the case of Kenya, however, though
the Constitution does not designate the Attorney General as a Minister, the
Interpretation and General Provisions Act includes the Attorney General in
the definition of a Minister. On the basis of that law it appears to us that
for the purposes of the Treaty the Attorney General of Kenya is a Minister
as "a person who in accordance with a law of [Kenya] acts as or performs the
functions of a Minister in [Kenya]".
[30] So, for purposes of the Treaty the two Attorneys-General, of Kenya and
Uganda, are Ministers. However, for the Sectoral Council to be properly
constituted it must comprise the representatives of all Partner States. This
is underlined by Rule 11 of the Rules of Procedure for the Council of
Ministers which provides:
"The quorum of a session of the Council shall be all Partner States
representation."
[31] This must apply to the Sectoral Councils since the decisions of the
Sectoral Councils are deemed to be those of the Council of Minister under
Article 14(3)(i) of the Treaty.
[32] In the circumstances we find that the establishment of the Sectoral
Council was inconsistent with the provisions of Article 14(3)(i). However,
since the purported Sectoral Council has been in place from 2001 and by now
has, undoubtedly made a number of decisions, which would be unwise to
disturb, we are of the considered opinion that this is a proper case to
apply the doctrine of prospective annulment. We order that our decision to
annul the Sectoral Council shall not have retrospective effect.
[33] We think that the doctrine of prospective annulment which has been
applied in various jurisdictions, is good law and practice. See The Court of
Justice for European Community in Defrenne vs. Sabena [1981] All E. R. 122;
US Court of Appeals 5th Circuit in Linkletter vs. Walker Warden 381 US
[1965] 618; and the Supreme Court of India in Golak Nath vs. The State of
Punjab [1967] AIR 1643.
[34] As for the second contention by Professor Ssempebwa, we note from Annex
'A' to the Reference, which is a report of the meeting of the Sectoral
Council on Legal and Judicial Affairs held on September 13th - 16th 2005,
that the participants were the Attorney-General / Minister of Justice and
Constitutional Affairs of Uganda, the Deputy Attorney-General / Permanent
Secretary, Ministry of Justice and Constitutional Affairs of Tanzania
representing the Attorney-General and the Solicitor General of Kenya also
representing the Attorney-General. However, by the Treaty the Partner States
bound themselves in Article 13 and 14 to be represented in the Council by
their respective Ministers responsible for regional cooperation and other
Ministers only and thereby delimited the prerogative of a Partner State in
determining its representation on the Council. In the circumstances the
decisions in Uganda vs. Commissioner of Prisons ex-parte Matovu (supra) is
not applicable to the facts of this case.
[35] We note that the Treaty does not provide for the members of the Council
or Sectoral Council to be represented at meetings by non-members. We think
that this was deliberate to avoid distortion of the elaborate structural
hierarchy of representation of the Partner States at the different levels in
the organizational framework of the Community. Clearly if members of the
Co-coordinating Committee, which reports to Council are allowed to represent
members of the Council or the Sectoral Council at their meetings, the
objective of separation of functions of the two organs would be defeated.
[36] We therefore do not see any justification for the respondent's attempts
to make in roads into the very clear words of Article 13 of the Treaty that,
Ministers of the Partner States can appoint persons who are not Ministers to
attend meetings of Sectoral Councils or those of the Council purportedly on
their behalf. It is not in dispute that the Deputy Attorney-General of
Tanzania and the Solicitor-General of Kenya are not members of the Council.
[37] We would also like to dispose of the attempt to confuse the purport of
Article 15 (2) of the Treaty by reading into it a stipulation that
discretion still remains in the Partner States to send to the meetings of
Council and those of Sectoral Councils persons who are not Ministers
contrary to the requirement of Article 13 of the Treaty. Article 15 (2) is
concerned with meetings of the Council and determination of procedure at
those meetings. The Council Rules define the expression "Partner State
representatives/representation" to mean a Minister designated to represent
such a State in the meetings of the Council. We do not therefore see how
Article 15 (2) and the Council Rules can be relied upon to show that there
is a discretion still left for the Partner States to send persons who are
not Ministers to the Council or Sectoral Council meetings.
[38] That argument was advanced in an effort to bolster the issue as to
whether it is the prerogative of the Partner States to designate such
persons as they deem fit to represent them at lawfully convened meetings of
either the Council or the Sectoral Council. It is quite clear that the
formulation of Council rules has followed faithfully the provision of
Article 13 of the Treaty and it is not understood in what manner whatsoever,
the Council Rules can be said to permit representation at those meetings by
persons other than those expressly determined in strict compliance with
Article 13 of the Treaty. We therefore have no hesitation in reiterating
that the meeting of 13 th to 16th September 2005 was not a lawful meeting of
a Sectoral Council and that the decisions it handed down in respect of the
two Bills was not valid decision of the Sectoral Council.
[39] Before we conclude on this aspect of the case, there is a matter to
which we would draw attention that though the composition of the Council is
established under Article 13 of the Treaty, the total membership is not
readily ascertainable, since it is only the membership of Ministers
responsible for regional cooperation which is static and ascertainable. We
were informed during arguments that membership of additional Ministers is
determined by the agenda of a particular meeting of the Council. We would
have thought that a more transparent way of knowing the composition of
Council Members should have been evolved and put in place by now. This is
good sense and good law since it will avoid uncertainty which usually
degenerates into disputes such this one before the Court.
[40] Having held, as we have, that the meeting was not a lawful meeting of
Sectoral Council on legal and Judicial Affairs and that the decisions of the
meeting was not a lawful meeting of a Sectoral Council on Legal and Judicial
Affairs and that the decisions of the meeting were ipso facto invalid, it is
unnecessary to consider if the said decisions are consistent with its
mandate (issue 12) and binding on the Assembly (issue 9) and whether the
Sectoral Council purported to discharge the functions of the Assembly (issue
13) or usurped the powers of the Council, the Court and/or Counsel to the
Community (issue 14). We also find that it would be futile to discuss
whether the council met and whether it was obligatory for it to meet in
order to make the decisions which were communicated to the Speaker by the
Secretary General (issues 11 and 17). In any case it is apparent from the
affidavit of Amanya Mushega, the then Secretary General, that the decisions
he communicated to the Speaker were made by the purported Sectoral Council
meeting alone.
[41] We would also recall the fact that the issue as to whether Protocols
are legally sufficient to render legislation unnecessary (issue 2) was one
of those decisions of the meeting of the Sectoral Council held on 13th to
16th September 2005 which meeting, we have found elsewhere in this judgment,
not to have been held as required by the Treaty. In view of that finding,
this Court would not like to go into that question of sufficiency or
otherwise of Protocols because to do so would be to encroach onto the
jurisdiction of the Assembly.
[42] It is also obvious that because they are invalid, the decisions of that
meeting cannot be deemed to be decisions of the Council under Article 14(3)
(i) of the Treaty. In his letter to the Speaker, the Secretary General
deemed them to be Council decisions because he assumed wrongly that they
were valid. In the Ministerial Statement to the Assembly, Mr. John Koech,
did not give as a reason for withdrawal or stay of the Bills that they were
decisions of the Council. In respect of two Bills he said Council was
requesting for postponement and in respect of the other two he asserted that
it was the view of the Partner States that they should be withdrawn.
[43] Issues 3, 6, 10 and 16 concern the introduction and withdrawal of Bills
from the Assembly. The debate in the Assembly is contained in the Hansard of
27th September 2005 when the Speaker directed that it was up to the owners
of the Bills, to decide whether to continue with the Bills in the Assembly
or let the Council takeover the Bills. Thereupon the issue was shelved for
debate on a future occasion. We would here refer to Mr. Kaahwa's helpful
concession on behalf of the respondent that the Assembly Rules also bind the
Members of the Council who are Members of the Assembly.
[44] We also see that under Article 59 (1) of the Treaty any Member of the
Assembly may introduce a Bill. This shows that the Council does not have
exclusive legislative initiative in the introduction of Bills in the
Assembly. In that connection, we appreciate the difficulty faced by the
Assembly upon receipt of the letter by the Secretary General which made it
quite clear that the matter in controversy between the Assembly and the
Council had reached an impasse and had to come to Court for the opposing
views on the interpretations of the Treaty to be resolved. Mr. Marando drew
our attention and we agree with him, and since it was also conceded by the
respondent in argument before us, that the Inter-University Bill as well as
the Immunities and Privileges Bill had undergone the First Reading, and had
in our view, become property of the Assembly.
[45] Accordingly, we see no basis, upon which the view that the four Bills
had been taken over by the Council, can be supported because the Treaty has
not bestowed any power on the Council to take over Bills without observance
of the Assembly Rules and we hold that the only lawful way of withdrawing
Bills which have become property of the Assembly, as the four Bills had
become, is under Rule 34 of the Assembly Rules which provides for a Motion
to be introduced in the Assembly for that purpose. The Motion requirement is
because the four Bills which were Private Members Bills; were introduced
into the Assembly by means of Motions. In its relevant parts Rule 34 says:
34 (1) A motion or an amendment to the motion may be withdrawn at the
request of the mover by leave of the House or Committee before the question
is put.
[46] We therefore find that the appearance before the Assembly of Mr. Koech,
a Member of Council on behalf of the Chairperson, without more, is
ineffective as a means of withdrawing the Bills, in that a bare statement
which was not a Motion to withdraw any of the Bills does not accord with the
requirement of Rule 34 aforesaid and so in our opinion, was the letter dated
16th September 2005 addressed by the Secretary General to the Speaker of the
Assembly. We accept that once a Bill is in the Assembly, its permission must
be sought to withdraw such a Bill. The permission requirement applies
irrespective of whether the Bill in question had been a Private Member's
Bill or a Community Bill.
[47] Issue 5 is whether the decisions of the Council are binding on the
Assembly under Article 16 of the Treaty. The issue arose because of the
respondent's contention that the decision of Council given pursuant to
Article 14 of the Treaty override the bar stipulated in Article 16 thus:
"other than the Summit, the
Court and the Assembly within their areas of jurisdictions." The respondent
further submitted that because of the all embracing power of the Council
under Article 14, the Assembly is bound by the Council decision to withdraw
the Bills.
[48] However, the applicants dispute that contention on the basis of Article
49 (1) of the Treaty which is on the Assembly's functions and also drew
attention to Article 14 (3) (b) of the Treaty which has as one of the
functions of the Council the initiation of legislation; but the Article does
not imply that the Council has the power to withdraw Bills at will unless in
terms of the Assembly Rules.
[49] Mr. Ssempebwa examined Article 16 of the Treaty which provides that
decisions of the Council bind other organs and institutions of the Community
"other than the Summit, the Court and the Assembly within their
jurisdiction". He emphasized those words which he said are meant to
underscore the separate and independent jurisdictions of these organs of the
Community. The matter at issue in this respect is withdrawal of Bills which
have become the property of the Assembly and therefore within its
jurisdiction.
[50] We would like to draw attention to the provisions of paragraph (3) (c)
of
Article 14 which provides:
"3. For purposes of paragraph 1 of this Article, the Council shall:
(a) ….
(b) ….
(c) Subject to this Treaty, give directions to the Partner States and to all
other organs and institutions of the Community other than the Summit, Court
and Assembly."
[51] We are of the firm view that the combined effect of explicit provisions
in Article 14 (3) (c) and Article 16 is dispel any notion that the decisions
of the Council albeit on policy issues bind the Assembly in respect of any
matter within its jurisdiction.
[52] We think the interpretation of Article 16 of the Treaty is a core issue
underlying this application and would refer to it in its entirety not only
to deal with the opposing assertions of the parties but to bring to light
certain inelegancies detected in the Table of Contents of that Article, its
heading in the body of the Treaty and finally its actual contents. Article
16 is as follows:
Subject to the provisions of this Treaty, the regulations, directives and
decisions of the Council taken or given in pursuance of the provisions of
this Treaty shall be binding on the Partner States, on all organs and
institutions of the Community other than the Summit, the Court and the
Assembly in their area of jurisdictions, and those to whom they may under
the Treaty be addressed.
[53] There is a variance between what the Table of Contents of the Treaty
has for Article 16 as "Effect of Regulations, Directives, Decisions and
Recommendations of the Council" together with the heading of the Article
which also has the word "recommendations" included while the body of Article
16 does not include that word "recommendations". This is obviously an
inelegant drafting which should be corrected either to eliminate the word
"recommendations" from the Table of contents and from the heading of the
Article or amend the Article to include that word in the body of the Article
as well because it will one day lead to some uncertainty which should be
avoided by a corrective amendment.
[54] We see sense in the applicants' submission that since the Assembly is a
representative organ in the Community set up to enhance a people centred
co¬operation, its independence under Article 16 of the Treaty should be
preserved because the Treaty has not endowed the Council with any power to
interfere in the operation of the Assembly. We agree and it is our view that
Article 16 of the Treaty does not bear the meaning ascribed to it by the
respondent in which it contended that decisions of Council bind the
Assembly, Article 16 of the Treaty notwithstanding. In light of Articles 14
and 16, we have come to the conclusion that decisions of the Council have no
place in areas of jurisdiction of the Summit, Court and the Assembly.
[55] Issue 4 is whether or not under Article 59 of the Treaty a member could
move in the Assembly the Trade Negotiations Bill, the Immunities and
Privileges Bill, and the Inter-University Council Bill. The Respondent
pleaded in paragraph 9 of the Response as follows: -
"At its 9th Meeting held on 24 November 2004, the Council decided that
policy oriented Bills such as those that have implications on the Partner
States' sovereign interests and on the budgetary aspects of the Community
ought to be submitted to the Legislative Assembly by the Council under
Article 14.3(b) of the Treaty as opposed to being proposed or introduced by
any member of the Assembly under Article 59 of the Treaty. The Council,
therefore, assumed responsibility for "The East African Community Trade
Negotiations Bill, The East African Community Budget Bill, The East African
Community Immunities and Privileges Bill and The Inter-University Council
for East Africa Bill as Council Bills for consideration and submission to
the Legislative Assembly."
[56] In paragraph 10 of the response the Respondent pleaded that protocols
can sufficiently provide for immunities and privileges for the Community and
also for the Inter-University Council for East Africa. Issues 2 and 4 arose
from the above pleadings by the Respondent. Article 59 States:
1. Subject to the rules of procedure of the Assembly, any member may propose
any motion or introduce any Bill in the Assembly:
Provided that a motion which does not relate to the functions of the
Community shall not be proposed in the Assembly, and a Bill which does not
relate to a matter with respect to which Acts of the Community may be
enacted shall not be introduced into the Assembly.
2. The Assembly shall not:
(a) Proceed on any Bill, including an amendment to any Bill that, in the
opinion of the person presiding, makes provision for any of the following
purposes:
(i) For the imposition of any charge upon any fund of the Community;
(ii) For the payment, issue or withdrawal from any fund of the Community of
any moneys not charged thereon or the increase in the amount of any such
payment, issue or withdrawal;
(iii) For the remission of any debt due to the Community; or
(d) Proceed upon any motion, including any amendment to a motion, the effect
of which, in the opinion of the person presiding, would be to make provision
for any of the said purposes.
[57] There is no doubt that Article 59 provides for introduction of Private
Member's Bills. It is also clear to us that both paragraphs (1) and (2)
provide restrictions to the general power of legislation by the Assembly.
The proviso to paragraph (1) prohibits the introduction of any motion in the
Assembly which does not relate to the functions of the Community and does
not relate to a matter with respect to which Acts of the Community may be
enacted. Paragraph (2), on the other hand, prohibits the Assembly from
proceeding with any Bill which imposes a charge on any fund of the
Community. It is abundantly clear to us that the prohibition under the two
paragraphs apply to any member of the Assembly, both the members and also
the Council when introducing Bills in the Assembly.
[58] Therefore the question is not whether or not in view of Article 59 (1)
the three Bills or any one of them could be moved by a member but whether
they could be moved in the Assembly at all. To be able to determine that
question would have required us to delve into the provisions of the Bills in
great detail. Since we have elsewhere in this judgment found that the Bills
are still pending before the Assembly and fortunately that is the view of
all the parties to the reference, we deem it wise not to make such an
investigation as to whether the Bills are within the ambit of Article 59 (1)
or not. The proper course to take, we think, is to leave it for whoever is
aggrieved with any of the Bills, in the context of Article 59, when they are
taken on again in the Assembly, to raise the matter in the Assembly.
[59] We will, however, make some general observations on the submissions of
the parties regarding the provisions of Article 59. In their submission on
issue 4 the Applicants submitted that under Article 59 which provides for
Private Member's Bills, there is no restriction on introduction of Bills
based on policy orientation and that apart from Bills that impose a charge
on the fund of the Community or issue or withdrawal from any fund of the
Community or the remission of any debt due to the Community, a member of the
Assembly may introduce any Bill.
[60] With great respect we do not share that view. We have already stated
that the proviso to Article 59(1) prohibits the introduction of any motion
in the Assembly which does not relate to the functions of the Community or
does not relate to a matter with respect to which an Act of the Community
can be enacted. We have also stated that the prohibition applies to both the
Council and any member.
[61] The respondent's contention in paragraph 9 of the Response was not
confined simply to policy oriented Bills but it went on to describe them as
"those that have implications on the Partner States sovereign interests."
What it means is that the competence of the Community is restricted to
matters which are within its jurisdiction. Any matter which is still under
the exclusive sovereignty of the Partner States is beyond the legislative
competency of the Community. The Assembly is a creature of the Treaty like
the other Organs of the Community and such an Organ can only have competence
on matters conferred upon it by the Treaty. The Asembly has no power to
legislate on matters on which the Partner States have not surrendered
sovereignty.
[62] Issue 7 is whether or not the decision taken by the Council at its 10th
Meeting held on 4th to 8th August 2005 on the East African Community Trade
Negotiations Bill is lawful and in accordance with the provisions of the
Treaty. We have already held that the Bill was not withdrawn from the
Assembly. All that the Council did was to seek a stay of the debate while a
study on the development of trade legislation is being undertaken and
concluded. We therefore find that the decision of the Council in this
respect is within its powers under Article 14 of the Treaty and no fault may
be ascribed thereto.
[63] We would like, while commending all counsel who appeared and addressed
us in this case, especially to commend the very useful and helpful
submissions addressed to us by Counsel for the amicus curae who very ably
and conscientiously assisted the Court without any attempt to side with any
other party in the reference. The Court, as a friend of the amicus curiae,
was guided accordingly.
[64] On costs, Professor Ssempebwa urged the Court to what orders to make in
the event his clients' Application succeeds. He indicated that the
applicants are content with an order that their disbursements be paid by the
respondent and would not insist on an order for full costs in their favour.
That is because the applicants see their application being for the general
public good and interest in the East African Region and any litigation of
this kind should be encouraged especially by the Community which should show
the way by indemnifying these applicants on their disbursement and any
future litigants against costs occasioned by such litigation. The
applicants, as we can see it, have succeeded in almost all their prayers
Though Mr. Kaahwa had urged that costs should follow the event, we find
Professor Ssempebwa's submission acceptable to us. We therefore award costs
of the application to the applicants and leave them to restrict their bill
of costs and for the taxing officer to limit the taxation thereof to those
disbursements.
Dated and delivered this ----- ------ of October 2006
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