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[1] The above mentioned applicants have brought
Reference No.3 of 2007 under Articles 1, 4, 5, 6, 7, 8, 9, 11, 27, 30, 38
and 150 of the Treaty for the Establishment of the East African Community
(the Treaty); and Rules 1(2) and 20 of the East African Court of Justice
Rules of Procedure. The Reference is supported by an affidavit sworn by Tom
OdhiamboOjienda, President of the East African Law Society (1st Applicant).
The essence of the Reference is to the effect that the amendments of the
Treaty and ratification thereof by the three Partner States, namely the
Republic of Kenya (1st Respondent); the United Republic of Tanzania (2nd
Respondent) and the Republic of Uganda (3rd Respondent) are illegal,
unconstitutional and of no legal effect since they were made in
contravention of Articles 150 and 38 of the Treaty. The applicants are
therefore seeking from the Court the following prayers:-
“1. Declaration that the process of amendment of the Treaty infringes
Articles 5, 6, 7, 8, 9, 11, 38 and 150 of the Treaty, as well as peremptory
norms of international law;
2. Declaration that amendment of the Treaty shall incorporate public
consultation and participation, in the same manner that was employed in
negotiating the Treaty and the various Protocols under it, especially the
Protocol on the Establishment of the East African Community Customs Union;
3. Declaration that the entire process of amendment of the Treaty to date is
unlawful and of no legal effect;
4. Declaration that the purported ratification processes for the said Treaty
Amendments employed by the Republic of Kenya, Republic of Uganda and the
United Republic of Tanzania are illegal, unconstitutional and of no legal
effect;
5. Order that the Partner States cannot amend the Treaty without commencing
a fresh process, as provided for under Article 150 of the Treaty;
6. Order that the cost of and incidental to this Treaty Reference
Application be met by the Respondents;
7. That this Honourable Court be pleased to make such further or other
orders as may be necessary in the circumstances.”
[2] The Reference was filed on 18th May 2007 together with this application
which was ex parte by Notice of Motion for interim orders, inter alia, that
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“Pending the hearing and final determination of the instant Reference, this
Honourable Court be pleased to restrain and prohibit the 1st, 2nd, 3rd , and
4th Respondents from formulating, publishing, enacting, ratifying, or
otherwise howsoever purporting to implement the proposed amendments to the
Treaty for the Establishment of the East African Community that were
commenced pursuant to the Official Communiqué of the Summit of Heads of
State of the East African Community that was issued on or about 30th
November 2006.”
[3] In order to strike a balance between the need to hear the application
expeditiously with the need to hear all the parties in view of the gravity
of the issues raised in the application, the Court on its own motion
directed that the application be heard inter partes and abridged the time
for filing replies.
[4] At the hearing of the application, Prof. Ssepembwa outlined the
principles that normally guide courts when called upon to decide whether or
not to grant the injunctive order sought. He submitted that the applicant
should first establish a prima facie case with a probability of success. On
this point, he contended that the Reference raises more than a prima facie
case. The issue involved was the correct interpretation of Article 150 of
the Treaty on the procedure to be followed when amending the Treaty. He
added that even the respondents in their replying affidavits sworn by
MsNjeriMwangi, for the 1st respondent; Mr. Martin Mwambutsya for the 3rd
respondent and Amb. Julius Baker Onen, for the 4th Respondent, had raised
the same issue, but the parties are poles apart as regards the exact
interpretation of Article 150 of the Treaty. The second issue in contention
is the applicants’ claim that the Respondents were in breach of Article 38
of the Treaty. The Applicants allege that the respondents proceeded on the
amendment of the Treaty despite the fact that the matter was still pending
in Court. In his view the first principle that there was a serious case
before the Court had been established, but given the nature of the
application before the Court, he did not go into the merits of the case at
this juncture.
[5] As regards the second principle, Prof. Ssempebwa submitted that the
Reference was essentially a public interest litigation which seeks to ensure
the observance of the Treaty in the interest of the citizens of East Africa.
He submitted that if the amendments are implemented, they will cause
irreparable injury particularly to the East African Court of Justice. Prof.
Ssempebwa pointed out that under the amendments, the current decisions of
the Court will be deemed to be decisions of the First Instance Division of
the Court and therefore subject to appeal to the Appellate Division of the
Court. Such a course of action will be extremely unfair and could cause
irreparable harm and interfere with the smooth operation of organs and
institutions of the East African Community. He also submitted that the
amendment to Article 30 of the Treaty would curtail the jurisdiction of the
Court thereby rendering it almost impotent, as he put it. There was also the
question of the limitation period of two months now proposed in the
amendments. The cumulative effect of all these amendments is that they would
cause irreparable harm to the smooth operation of the Court to the prejudice
of the people of East Africa.
[6] Learned Counsel for the Respondents strongly resisted the application
for an interim injunctive order. From their respective replying affidavits
and the oral submissions of MsKimani; Mr. Mwaimu; Mr. Oluka and Mr. Kaahwa,
three issues stand out, namely; (i) that the applicants have not disclosed
any cause of action against any of the Respondents; (ii) that the applicants
have not
[7] established the conditions essential to move the Court to grant the
order sought and (iii) that the application has been overtaken by events
since the challenged amendments have already come into force.
[8] It is the contention of the respondents that the applicants have not
shown what rights or interest were violated or infringed upon. The two
affidavits in support of the Notice of Motion were couched in generalities
without disclosing the nature of the specific injury that was personal to
them and which has been infringed under the Treaty. What the respondents are
saying in effect is that the applicants have no locus standi to institute
the Reference before the Court.
[9] They have not shown what legal right has been violated and that the
respondents are liable for that violation. On the other hand, Prof.
Ssempebwa submitted that the respondents in purporting to amend the Treaty
contravened Article 150, thus depriving the rights of East Africans to
participate in the process. Consequently the applicants had the obligation
to access the Court to stop this breach of Article 150 of the Treaty, among
others.
[10] Our starting point in this regard is the traditional view on locus
standi. In the landmark Indian case of S.P. Gupta v Union of India AIR 1982
SC 149. Bhagwati, J. in the course of his judgment stated as follows at page
185:-
“The traditional rule in regard to locus standi is that judicial redress is
available only to a person who has suffered a legal injury of violation of
his legal right or legally protected interest by the impugned action of the
state or a public authority or any other person or who is likely to suffer a
legal injury by reason of threatened violation of his legal right or legally
protected interest by any such action. The basis of entitlement to judicial
redress is personal injury to property, body, mind or reputation arising
from violation, actual or threatened, of the legal right orlegally protected
interest of the person seeking such redress. This is a rule of ancient
vintage and it arose during an era when
private law dominated the legal scene and public law had not yet been born.”
[11] The learned judge continued at page 190 as follows:-
“If no one can maintain an action for redress of such public or public
injury, it would be disastrous for the rule of law, for it would be open to
the State or a public authority to act with impunity beyond the scope of its
power or in breach of a public duty owed to it. The Courts cannot
countenance such a situation where observance of the law is left to the
sweet will of the authority bound by it, without any redress if the law is
contravened.”
[12] According to the traditional view of locus standi as well explained
above, only an aggrieved person, that is, one who has a more particular or
peculiar interest of his own beyond that of the general public, can access
the Court to have his rights vindicated. (see also: Ex-parte Sidebotham
(1880) 14 Ch D 458). Despite this apparent rigidity in the rule, Courts have
somewhat relaxed the rule. For instance, in the case of Inland Revenue
Commissioners v National Federation of Self-Employed and Small Businesses
Ltd (1982) AC 617, Lord Diplock had this to say at page 644 E:-
“It would in my view be a grave lacuna in our system of public law if a
pressure group like the federation or even a single spirited taxpayer, were
prevented by outdated technical rules of locus standi from bringing the
matter to the attention of the Court to vindicate the rule of law and get
the unlawful conduct stopped.”
[13] From India again, in the case of Janata Dal v H.S. Chowdhary AIR 1993
SC 892, the Court stated at paragraph 62:-
“….. the strict rule of locus standi applicable to private litigation is
relaxed and a broad rule is evolved which gives the right of locus standi to
any member of the public acting bona fide and having sufficient interest in
instituting an action for redressal of public wrong or public injury but who
is not a mere busybody or a meddlesome interloper; since the dominant object
of PIL is to ensure observance of the provisions of the Constitution or the
law which can be best achieved to advance the cause of the Community ….. or
public interest by permitting any person, having no personal gain or private
motivation or any other oblique consideration, but acting bona fide and
having sufficient interest in maintaining an action for judicial redress for
public injury to put the judicial machinery in; motion like action popularis
of Roman Law whereby any citizen could bring such an action in respect of
public delict.”
[14] Similar sentiments were echoed by Lugakingira, J. in the High Court of
Tanzania in the case of Rev. Christopher Mtikila v The Attorney General
[1995] TLR 31 at page 45 where he stated: -
“I hasten to emphasize, however, that standing will be granted on the basis
of public interest litigation where the petition is bona fide and evidently
for the public good and where the Court can provide an effective remedy.”
[15] In our recent decision in Reference No.1 of 2006, Prof. Peter Anyang’
Nyongo and 10 Others vs The Attorney General of Kenya and 5 Others
(unreported), we had occasion to explain what is a common law cause of
action, and cited the case of Auto Garage v. Motokov (No.3) (1971) EA 514.
We also stated that various Articles in the Treaty including Article 30
create special causes of action which different parties may refer to this
Court for adjudication. The applicants herein are Bar Associations in their
respective Partner States and have a duty to promote adherence to the rule
of law. We are therefore satisfied that the applicants are genuinely
interested in the matter complained of, that is, the alleged non-observance
of the Treaty by the Respondents. We therefore hold that the applicants have
locus standi to make this application.
[16] This takes us to the second issue. The conditions for the grant of an
interlocutory injunction were stated in the oft-cited case of Giella v
Cassman Brown & Co. Ltd (1973) E.A. 358. Spry, V.P. stated as follows at
page 360E: -
“The conditions for the grant of an interlocutory injunction are now well
settled in East Africa. First, an applicant must show a prima facie case
with a probability of success. Secondly, an interlocutory injunction will
not normally be granted unless the applicant might otherwise suffer
irreparable injury, which would not adequately be compensated by an award of
damages. Thirdly, if the Court is in doubt it will decide the case on the
balance of convenience.” (followed in Kenya Commercial Finance Co.Ltd v
Afraha Education Society (2001) IEA 86 at page 89d).
[17] From the applicants affidavits in support of the Notice of Motion, the
replying affidavits of the Respondents and the oral submission of the
learned Counsel representing the parties, it is evident that the
interpretation of Article 150 of the Treaty will be a subject-matter of
contest during the hearing of the Reference. We are satisfied that the
totality of the facts in the affidavits discloses bona fide serious issues
to be tried by the Court. At this stage we must refrain from making any
determination on the merits of the application or any defence to it. Despite
this limitation, however, we are satisfied that the applicants have made out
a serious question to be tried which if not controverted, might entitle the
applicants to succeed in respect of a number of their prayers. The
applicants have therefore crossed over the first hurdle.
[18] The second pre-condition is that the Courts’ intervention is necessary
to protect the applicants from the kind of injury which may be irreparable
and which cannot be compensated by way of damages in the event the
application is refused. Prof. Ssempebwa submitted that this was public
interest litigation and therefore it was not possible to show personal loss
or injury to the applicants. The aim of the Reference is to ensure the
observance of the provisions of the Treaty. We have read the affidavits of
Mr. Tom OdhiamboOjienda, Mr. Alute Simon Mughwai and the replying
affidavits. It is evident that the impugned amendments to the Treaty have
now been implemented save perhaps the appointment to Judges of the
reconstituted Court of Justice. What has been done so far, even if it were
unlawful, cannot be undone in these interlocutory proceedings. Whatever
remains to be done by way of operationalization can be rectified if the
amendments are in the end declared illegal by this Court.
[19] In the result and for the foregoing reasons, we dismiss the application
for injunction. Costs to be in the cause.
Dated and delivered this ….. day of July 2007:
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