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[1] This is a Reference by sixteen persons
against the Secretary General of the East African Community as the 1st
Respondent and the Attorney General of Uganda as the 2nd Respondent.
[2] The story of the Claimants is that: During the last quarter of 2004 they
were charged with treason and misprision of treason and consequently they
were remanded in custody. However, on 16th November, 2006, the High Court
granted bail to fourteen of them. Immediately thereafter the High Court was
surrounded by security personnel who interfered with the preparation of bail
documents and the fourteen were re-arrested and taken back to jail.
[3] On 24th November, 2006, all the Claimants were taken before a military
General Court Martial and were charged with offences of unlawful possession
of firearms and terrorism. Both offences were based on the same facts as the
previous charges for which they had been granted bail by the High Court. All
Claimants were again remanded in prison by the General Court Martial.
[4] The Uganda Law Society went to the Constitutional Court of Uganda
challenging the interference of the court process by the security personnel
and also the constitutionality of conducting prosecutions simultaneously in
civilian and military courts. The Constitutional Court ruled that the
interference was unconstitutional.
[5] Despite that decision of the Constitutional Court the complainants were
not released from detention and hence this Reference with the following
complaint:
[6] The Claimants aver that the rule of law requires that public affairs are
conducted in accordance with the law and decisions of the Court are
respected, upheld and enforced by all agencies of the Government and
citizens and that the actions of a Partner State of Uganda, its agencies and
the second Respondent have in blatant violation of the Rule of Law and
contrary to the Treaty continued with infringement of the Treaty to date.
The Claimants have sought the following orders:
1. That the act of surrounding the High Court by armed men to prevent
enforcement of the Court’s decision is an infringement of Articles 7(2),
8(1)(c) and 6 of the Treaty for the Establishment of the East African
Community (The Treaty).
2. That the surrounding of the High Court by armed men from the Armed Forces
of Uganda is in itself an infringement of the Fundamental Principles of the
Community in particular regard to peaceful settlement of disputes.
3. The refusal by the Second Respondent to respect and enforce the decision
of the High Court and the Constitutional Court is infringement of Articles
7(2), 8(1)(c) and 6 of the Treaty.
4. The continual arraignment of the Applicants who are civilians before a
military court is an infringement of Articles 6, 7, and 8 of the Treaty for
Establishment of the East African Community.
5. The inaction and the loud silence by the First Respondent is an
infringement of Article 29 of the Treaty.
6. Costs for the Reference.
[7] The 1st Respondent in his response at the outset sought the Court to
dismiss the Reference on two grounds: One, that there was no cause of action
disclosed against him, and two, that the affidavits in support of the
Reference were all incurably defective. In the alternative, the 1st
Respondent argued that:
[8] The allegations which form the basis of the Application have at no time
been brought to the knowledge of the 1st Respondent and the Claimants are,
therefore, put to strict proof.
[9] The 2nd Respondent, on the other hand, virtually conceded the facts as
pleaded by the Claimants. After admitting that the Claimants were charged
with treason and misprision of treason, the 2nd Respondent stated in his
Response:
5. That on 16th November, 2005, the security agencies of the Government of
Uganda received intelligence information that upon release on bail, the
Claimants were to be rescued to escape the course of justice and to go to
armed rebellion.
6. That the security agencies decided to deploy security at the High Court
for purely security reasons and to ensure that the Claimants are re-arrested
and taken before the General Court Martial to answer charges of terrorism
and unlawful possession of firearms.
7. That on 17th November, 2005, all the Claimants were charged in the
General Court Martial with terrorism and unlawful possession of firearms
which are service offences according to the Uganda People’s Defence Forces
Act, No. 7 of 2005.
[10] Thus, in effect, the 2nd Respondent is affirming that the acts did take
place but contends that they did not breach the rule of law.
[11] The Claimants were represented by Mr. Daniel Ogalo, Learned Counsel,
while the 1st Respondent had the services of Mr. Colman Ngalo, Learned
Advocate, and Mr. Wilbert Kaahwa, Learned Counsel to the Community. The 2nd
Respondent was represented for by Mr. Henry Oluka, Learned Senior State
Attorney of Uganda assisted by Mr. George Kalemera and Ms. Caroline Bonabana,
Learned State Attorneys of Uganda.
[12] When the matter came up for the Scheduling Conference under Rule 52 of
the East African Court of Justice Rules of Procedure (The Rules), Mr. Ngalo
raised a preliminary objection that there is no cause of action established
against the 1st Respondent. The pleadings of the Claimants do not disclose
that at any stage, the Secretary General was informed by the Applicants or
by anybody at all that the Applicants had been incarcerated or confined or
that their rights were being denied.
[13] Mr. Ogalo responded by submitting that under Article 71(1)(d) of the
Treaty one of the functions of the Secretariat, of which the 1st Respondent
is head, is:
the undertaking either on its own initiative or otherwise, of such
investigations, collection of information, or verification of matters
relating to any matter affecting the Community that appears to it to merit
examination.
[14] Mr. Ogalo contended that it is not necessary that the 1st Respondent
must be told by any person “because he can, on his own, initiate
investigations”.
[15] The Court dismissed the preliminary objection but we reserved our
reasons for doing so and we now proceed to give them. At the time of hearing
the preliminary objection the Court had not reached the stage of a
Scheduling Conference under Rule 52. It is at that Conference that points of
agreement and disagreement are sorted out. It was our considered opinion
that the matter raised could appropriately be classified at the Scheduling
Conference as a point of disagreement.
[16] But apart from that the matter raised by Mr. Ngalo was not one which
could be dealt with as a preliminary objection because it was not on point
of law but one involving facts. As LAW, J. A. of the East African Court of
Appeal observed in Mukisa Biscuit Manufacturing Co. Ltd. v. West End
Distributors Ltd. [1969] E. A. 696 at p. 700:
So far as I am aware, preliminary objection consists of a point of law which
has been pleaded, or which arises by clear implication out of pleadings, and
which if argued as a preliminary point may dispose of the suit. Examples are
an objection to the jurisdiction of the court, or a plea of limitation, or a
submission that the parties are bound by the contract giving rise to the
suit to refer the dispute to arbitration.
[17] Then at p. 701 SIR CHARLES NEWBOLD, P. added:
A preliminary objection is in the nature of what used to be a demurrer. It
raises a pure point of law which is argued on the assumption that all the
facts pleaded by the other side are correct. It cannot be raised if any fact
has to be ascertained or if what is sought is the exercise of judicial
discretion. (Emphasis is supplied.)
[18] The Court of Appeal of Tanzania in Civil Reference No. 32 of 2005,
Etiennes Hotel v National Housing Corporation dealt with a similar issue and,
after citing Mukisa Biscuits with approval, held:
Here facts have to be ascertained in all the remaining six grounds of the so
called preliminary objection and that is why the Respondent has filed two
affidavits which have been objected to by the applicant.
We are of the decided view that grounds of preliminary objection advanced
cannot be disposed off without ascertaining facts. These are not then
matters for preliminary objection. So, we dismiss the motion for preliminary
objection with costs.
[19] Whether or not the 1st Respondent had knowledge of what was happening
to the complainants in Uganda can never ever be a point of law but one of
fact to be proved by evidence and, therefore, it could not be a matter for a
preliminary objection and hence the dismissal.
[20] We may as well point out here, for the sake of completeness, that Mr.
Ngalo also challenged the legality of the affidavits filed in support of the
Reference. However, in the course of answering questions from the Bench he
abandoned his objection in the following terms:
Your Lordships, I am not going to pursue this point. I concede that these
affidavits are sufficient for the purposes of this application.
[21] Two issues were agreed upon at the Scheduling Conference which were:
1. Whether the invasion of the High Court premises by armed agents of the
Second Respondent, the re-arrest of the Complainants granted bail by the
High Court and their incarceration in prison constitute infringement of the
Treaty for the Establishment of the East African Community.
2. Whether the First Respondent can on his own initiative investigate
matters falling under the ambit of the provisions of the Treaty.
[22] As for the first issue Mr. Ogalo submitted that the Court was called on
to interpret Articles 6, 7, 8, 29 and 71 of the Treaty and implored the
Court to do so by looking at “the ordinary meaning of the words used in
those provisions, the objectives of the Treaty and the purposes of those
articles”.
[23] His main plank of argument was that the acts complained of violated one
of the fundamental principles of the Community as spelled out in Article
6(d), that is, rule of law. As to the import of that doctrine he referred us
to The Republic v. Gachoka and Another, [1999] 1 EA 254; Bennett v.
Horseferry Road Magistrates’ Court and Another [1993] 2 All ER 474; and a
passage in Kanyeihamba’s Commentaries on Law, Politics and Governance (Renaissance
Media Ltd, 2006) p 14.
[24] The learned advocate pointed out that the first complaint is the act of
surrounding the High Court of Uganda by armed men so as to prevent the
enforcement of the decision of the Court. The second act was the re-arrest
and the incarceration of the Complainants.
[25] Mr. Ogalo pointed out that the acts complained of constituted contempt
of court and also interference with the independence of the Judiciary. He
concluded that both contempt of court and the violation of the independence
of the judiciary contravene the principle of the rule of law.
[26] As for the second issue Mr. Ogalo was very brief. He submitted that the
1st Respondent is empowered by Article 71 (1)(d), on his own initiative, to
conduct investigation, collect information or verify facts relating to any
matter affecting the Community that appears to him to merit examination. The
stand taken by Mr. Ogalo was that if the 1st Respondent properly exercised
his powers under the Treaty, he should have known the matters happening in
Uganda as a Partner State and take appropriate actions.
[27] He, therefore, asked the Court to find both issues in favour of the
complainants.
[28] In reply Mr. Ngalo pointed out that what concerned the 1st Respondent
was the second issue. The Learned Counsel submitted that the complainants
are alleging that the 1st Respondent ought to have reacted to what the 2nd
Respondent was doing in Uganda. However, he contended, there is no evidence
that the 1st Respondent was aware of those activities. He pointed out that
Article 29 starts by providing “Where the Secretary General considers that a
Partner State has failed …” and he argued that for the Secretary General to
“consider” he has to be aware but the Complainants have failed to establish
that awareness.
[29] As for Article 71 Mr. Ngalo submitted that it provides for the
functions of the Secretariat as an institution of the Community and not as
to what happens in the Partner States.
[30] For the 2nd Respondent Mr. Oluka dealt with the surrounding of the High
Court, the re-arrest and the continued incarceration of the Complainants.
The Learned Senior State Attorney pointed out that all the three matters
were fully canvassed and decided upon by the Constitutional Court of Uganda.
Therefore, he submitted that this Court is prohibited by the doctrine of res
judicata from dealing with those issues again.
[31] Mr. Oluka conceded that though the facts in this Reference and those
which were in the Petition before the Constitutional Court of Uganda are
substantially the same, the parties are different. In the Constitutional
Petition No. 18 of 2005, the parties were The Uganda Law Society and the
Attorney General of Uganda while in this Reference the parties are James
Katabazi and 21 others, on the one hand, and the Secretary General of the
Community and the Attorney General of Uganda, on the other hand.
Nevertheless, Mr. Oluka stuck to his guns that the doctrine of res judicata
applies to this Reference.
[32] He also submitted that under Article 27 (1) this Court does not have
jurisdiction to deal with matters of human rights until jurisdiction is
vested under Article 27(2). He, therefore, asked the Court to dismiss the
Reference with costs.
[33] There are three issues which we think we ought to dispose of at the
outset: First, whether or not Article 71 is relevant in this application.
Second, whether or not the doctrine of res judicata applies to this
Reference. Last, is the issue of the jurisdiction of this Court to deal with
human rights.
[34] It is the argument of Mr. Ogalo that Article 71 (1) (d) imposes on the
1st Respondent the duty to collect information or verify facts relating to
any matter affecting the Community that appears to him to merit examination.
Mr. Ngalo, on the other hand, contends that Article 71 (1) (d) sets out the
functions of the Secretariat as an institution of the Community and not as
to what happens in the Partner States
Article 71 (1) (d) provides as follows:
The Secretariat shall be responsible for:
1…
2…
3…
4. the undertaking either on its own initiative or otherwise, of such
investigations, collection of information, or verification of matters
relating to any matter affecting the Community that appears to it to merit
examination; (Emphasis is supplied.)
[35] Mr. Ngalo wanted to confine the functions of the Secretariat under
Article 71 (1) (d) to internal matters of the Secretariat as an organ, which
he erroneously referred to as an institution, divorced from the duties
imposed on the Secretary General under Article 29. It is, therefore, our
considered opinion that Article 71 (1) (d) applies to this Reference.
[36] Are we barred from adjudicating on this Reference because of the
doctrine of res judicata? The doctrine is uniformly defined in the Civil
Procedure Acts of Kenya, Uganda and Tanzania as follows:
No court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a
former suit between the same parties, or between parties under whom they or
any of them claim, litigating under the same title, in a court competent to
try such subsequent suit or the suit in which such issue has been
subsequently raised, and has been heard and finally decided by such court.
[37] Three situations appear to us to be essential for the doctrine to apply:
One, the matter must be “directly and substantially” in issue in the two
suits. Two, parties must be the same or parties under whom any of them claim
litigating under the same title. Lastly, the matter was finally decided in
the previous suit. All the three situations must be available for the
doctrine of res judicata to operate. In the present case one thing is
certain: The parties are not the same and cannot be said to litigate under
the same title. Mr. Oluka himself has properly conceded that.
[38] Secondly, while in the Constitutional Court of Uganda the issue was
whether the acts complained of contravene the Constitution of Uganda, in the
instant Reference the issue is whether the acts complained of are a
violation of the rule of law and, therefore, an infringement of the Treaty.
Therefore, the doctrine does not apply in this Reference.
[39] Does this Court have jurisdiction to deal with human rights issues? The
quick answer is: No it does not have. Jurisdiction of this Court is provided
by Article 27 in the following terms:
1. The Court shall initially have jurisdiction over the interpretation and
application of this Treaty.
2. The Court shall have such other original, appellate, human rights and
other jurisdiction as will be determined by the Council at a suitable
subsequent date. To this end, the Partner States shall conclude a Protocol
to operationalise the extended jurisdiction.
[40] It very clear that jurisdiction with respect to human rights requires a
determination of the Council and a conclusion of a Protocol to that effect.
Both of those steps have not been taken. It follows, therefore, that this
Court may not adjudicate on disputes concerning violation of human rights
per se.
[41] However, let us reflect a little bit. The objectives of the Community
are set out in Article 5 (1) as follows:
1. The objectives of the Community shall be to develop policies and
programmes aimed at widening and deepening co-operation among the Partner
States in political, economic, social and cultural fields, research and
technology, defence, security and legal and judicial affairs, for their
mutual benefit. (Emphasis supplied.)
[42] Sub-Articles (2) and (3) give details of pursuing and ensuring the
attainment of the objectives as enshrined in sub-article (1) and of
particular concern here is the “legal and judicial affairs” objective.
[43] Then Article 6 sets out the fundamental principles of the Community
which governs the achievement of the objectives of the Community, of course
as provided in Article 5 (1). Of particular interest here is paragraph (d)
which talks of the rule of law and the promotion and the protection of human
and peoples’ rights in accordance with the provisions of the African Charter
on Human and Peoples’ Rights.
[44] Article 7 spells out the operational principles of the Community which
govern the practical achievement of the objectives of the Community in
Sub-Article (1) and seals that with the undertaking by the Partner States in
no uncertain terms of Sub-Article (2):
The Partner States undertake to abide by the principles of good governance,
including adherence to the principles of democracy, the rule of law, social
justice and the maintenance of universally accepted standards of human
rights. (Emphasis supplied.)
[45] Finally, under Article 8 (1) (c) the Partner States undertake, among
other things:
Abstain from any measures likely to jeopardise the achievement of those
objectives or the implementation of the provisions of this Treaty.
[46] While the Court will not assume jurisdiction to adjudicate on human
rights disputes, it will not abdicate from exercising its jurisdiction of
interpretation under Article 27 (1) merely because the Reference includes
allegation of human rights violation.
[47] Now, we go back to the substance of this Reference. As we have already
observed in this judgment, the 2nd Respondent has conceded the facts which
are the subject matter of this Reference and, so, they are not in dispute.
He has only offered some explanation that the surrounding of the Court, the
re-arrest, and therefore, the non observance of the grant of bail, and the
re-incarceration of the Complainants were all done in good faith to ensure
that the Complainants do not jump bail and go to perpetuate insurgency.
[48] Mr. Ogalo invited us to find that explanation unjustified because it
was not supported by evidence. We agree with him and we would go further and
observe that “the end does not justify the means”.
[49] The Complainants invite us to interpret Articles 6(d), 7(2) and 8(1)(c)
of the Treaty so as to determine their contention that those acts, for which
they hold the 2nd Respondent responsible, contravened the doctrine of the
rule of law which is enshrined in those articles.
[50] The relevant provision of Article 6(d) provides as follows:
The fundamental principles that shall govern the achievement of the
objectives of the Community by the Partner States shall include:
1…
2…
3…
4. good governance including adherence to the principles of democracy, the
rule of law, accountability, transparency, social justice, equal
opportunities, gender equality, as well as the recognition, promotion and
protection of human and peoples’ rights in accordance with the provisions of
the African Charter on Human and Peoples’ Rights; (Emphasis supplied.)
[51] The starting point is what does rule of law entail?
[52] From Wikipedia, the Free Encyclopedia:
The rule of law, in its most basic form, is the principle that no one is
above the law. The rule follows logically from the idea that truth, and
therefore law, is based upon fundamental principles which can be discovered,
but which cannot be created through an act of will. (Emphasis is supplied.)
[53] The Free Encyclopedia goes further to amplify:
Perhaps the most important application of the rule of law is the principle
that governmental authority is legitimately exercised only in accordance
with written, publicly disclosed laws adopted and enforced in accordance
with established procedural steps that are referred to as due process. The
principle is intended to be a safeguard against arbitrary governance,
whether by a totalitarian leader or by mob rule. Thus, the rule of law is
hostile both to dictatorship and to anarchy.
[54] Here at home in East Africa Justice George Kanyeihamba in Kanyeihamba’s
Commentaries on Law, Politics and Governance at page 14 reiterates that
essence in the following words:
The rule of law is not a rule in the sense that it binds anyone. It is
merely a collection of ideas and principles propagated in the so-called free
societies to guide lawmakers, administrators, judges and law enforcement
agencies. The overriding consideration in the theory of the rule of law is
the idea that both the rulers and the governed are equally subject to the
same law of the land.
(Emphasis is supplied.)
[55] It is palpably clear to us, and we have no flicker of doubt in our
minds, that the principle of “the rule of law” contained in Article 6(d) of
the Treaty encapsulates the import propounded above. But how have the courts
dealt with it? In The Republic v. Gachoka and Another the Court of Appeal of
Kenya reiterated the notion that rule of law entails the concept of division
of power and its strict observance. In Bennett v. Horseferry Road
Magistrates’ Court and Another, the House of Lords took the position that
the role of the courts is to maintain the rule of law and to take steps to
do so.
[56] In that appeal the Appellant, a New Zealander, while living in Britain
obtained a helicopter by false pretences and then fled the country. He was
later found in South Africa but as there was no Extradition Treaty between
Britain and South Africa, the police authorities of the two countries
conspired to kidnap the Appellant and took him back to Britain. His defence
to a charge before a divisional court was that he was not properly before
the court because he was abducted contrary to the laws of the two countries.
That defence was dismissed by the divisional court. However, on appeal to
the House of Lords LORD GRIFFITHS remarked at page 108:
If the Court is to have the power to interfere with the prosecution in the
present circumstances it must be because the judiciary accept a
responsibility for the maintenance of the rule of law that embraces a
willingness to oversee executive action and to refuse to countenance
behaviour that threatens either basic human rights or the rule of law.
[57] His Lordship went on:
It is to my mind unthinkable that in such circumstances the court should
declare itself to be powerless and stand idly by.
[58] He then referred to the words of LORD DEVLIN in Connelly v. DPP [1964]
2 All ER 401 at 442:
The courts cannot contemplate for a moment the transference to the executive
of the responsibility for seeing that the process of law is not abused.
[59] The appeal was allowed and the appellant was let scot-free.
[60] Have the facts complained of in this Reference breached the sacred
principle of rule of law as expounded above?
[61] Let us briefly reiterate the facts even at the risk of repeating
ourselves: The Complainants were granted bail by the High Court of Uganda
but some armed security agents of Uganda surrounded the High Court premises
pre-empting the execution of the bail, re-arrested the Complainants,
re-incarcerated them and re-charged them before a Court Martial. The
Complainants were not released even after the Constitutional Court of Uganda
ordered so.
[62] Mr. Ogalo left no stone unturned to persuade us to find that what the
soldiers did breached the rule of law. He referred us to similar facts in
the case of Constitutional Rights Project and Civil Liberties v. Nigeria,
Communication 143/95, 150/96 – AHG/222 (XXXVI) Annex V p 63. In that matter
Chief Abiola, among others, was detained and the Federal Government of
Nigeria refused to honour the bail granted to him by court. In the said
Communication the African Commission on Human Rights had this to say in
paragraph 30 on page 67:
The fact that the government refuses to release Chief Abiola despite the
order of his release on bail made by the Court of Appeal is a violation of
Article 26 which obliges State parties to ensure the independence of the
judiciary. Failing to recognise a grant of bail by the Court of Appeal
militates against the independence of the judiciary. (Emphasis supplied).
[63] The facts in that Communication are on all fours with the present
Reference and we find that the independence of the judiciary, a corner stone
of the principle of the rule of law, has been violated.
[64] The African Commission went further to observe in paragraph 33 that:
The government attempts to justify Decree No. 14 with the necessity for
state security. While the Commission is sympathetic to all genuine attempts
to maintain public peace, it must note that too often extreme measures to
curtail rights simply create greater unrest. It is dangerous for the
protection of human rights for the executive branch of government to operate
without such checks as the judiciary can usefully perform.
[65] That is exactly what the Government of Uganda through the Attorney
General, the 2nd Respondent, attempted to do, to justify the actions of the
Uganda Peoples’ Defence Forces:
5. That on 16th November, 2005, the security Agencies of the Government of
Uganda received intelligence information that upon release on bail, the
Claimants were to be rescued to escape the course of justice and to go to
armed rebellion.
6. That the security agencies decided to deploy security at the High Court
for purely security reasons and to ensure that the Claimants are re-arrested
and taken before the General Court Martial to answer charges of terrorism
and unlawful possession of firearms.
[66] We on our part are alarmed by the line of defence offered on behalf of
the Government of Uganda which if endorsed by this Court would lead to an
unacceptable and dangerous precedent, which would undermine the rule of law.
[67] Much as the exclusive responsibility of the executive arm of government
to ensure the security of the State must be respected and upheld, the role
of the judiciary to provide a check on the exercise of the responsibility in
order to protect the rule of law cannot be gainsaid. Hence the adjudication
by the Constitutional Court of Uganda referred to earlier in this judgment.
In the context of the East African Community, the same concept is embodied
in Article 23 which provides:
The Court shall be a judicial body which shall ensure the adherence to law
in the interpretation and application and compliance with this Treaty.
[68] We, therefore, hold that the intervention by the armed security agents
of Uganda to prevent the execution of a lawful Court order violated the
principle of the rule of law and consequently contravened the Treaty.
Abiding by the court decision is the corner stone of the independence of the
judiciary which is one of the principles of the observation of the rule of
law.
[69] The second issue is rather nebulous and we better reproduce it for a
better comprehension:
Whether the first Respondent can on his own initiative, investigate matters
falling under the ambit of the provisions of the Treaty.
[70] Article 29(1) of the Treaty provides as follows:
Where the Secretary General considers that a Partner State has failed to
fulfil an obligation under this Treaty or has infringed a provision of this
Treaty, the Secretary General shall submit his or her findings to the
Partner State concerned for that Partner State to submit its observations on
the findings.
[71] The Secretary General is required to “submit his or her findings to the
Partner State concerned”. It is obvious to us that before the Secretary
General is required to do so, she or he must have done some investigation.
From the unambiguous words of that sub-Article there is nothing prohibiting
the Secretary General from conducting an investigation on his/her own
initiative. Therefore, the glaring answer to the second issue is: Yes the
Secretary General can on his own initiative investigate such matters.
[72] But the real issue here is not whether he can but whether the Secretary
General, that is, the 1st Respondent, should have done so. It was in this
regard that there was heated debate in the preliminary objection on whether
or not the Secretary General must have intelligence of some activity
happening in a Partner State before he undertakes an investigation.
[73] We dismissed the preliminary objection for the reason that the issue
was not a point of law but one of fact requiring evidence. That evidence of
whether or not the 1st Respondent had knowledge, however, was never produced
by the Complainants in the course of the hearing. This, therefore, is the
appropriate juncture to determine whether or not knowledge is an essential
prerequisite for an investigation by the 1st Respondent.
[74] We are of the decided opinion that without knowledge the Secretary
General could not be expected to conduct any investigation and come up with
a Report under Article 29(1).
[75] We may as well add that it is immaterial how that information comes to
the attention of the Secretary General. As far as we are concerned it would
have sufficed if the Complainants had shown that the events in Uganda
concerning the Complainants were so notorious that the 1st Respondent could
not but be aware of them. But that was not the case for the Complainants.
[76] In almost all jurisdictions courts have the powers to take judicial
notice of certain matters. We are not prepared to say that what is
complained of here is one such matter. However, the powers that the
Secretary General has under Article 29 are so encompassing and are pertinent
to the advancement of the spirit of the re-institution of the Community and
we dare observe that the Secretary General ought to be more vigilant than
what his response has portrayed him to be.
[77] In any case, it is our considered opinion that even if the 1st
Respondent is taken to have been ignorant of these events, the moment this
Application was filed and a copy was served on him, he then became aware,
and if he was mindful of the delicate responsibilities he has under Article
29, he should have taken the necessary actions under that Article. That is
all that the Complainants expected of him: to register with the Uganda
Government that what happened is detestable in the East African Community.
[78] In the result we hold that the Reference succeeds in part and the
Claimants are to have their costs as against the 2nd Respondent.
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