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[1] On 14th December 2006, the Summit of the
Heads of State of the then three Partner States in the East African
Community (“the Summit”) considered and adopted amendments to several
Articles of the Treaty for the Establishment of the East African Community
(“the Treaty”). On subsequent diverse dates, the three Partner States
severally ratified the said amendments to the Treaty and deposited their
respective instruments of ratification with the Secretary General of the
East African Community. The last of the instruments of ratification was so
deposited on 19th March 2007. Meanwhile, on 16th March 2007, the said
amendments were published in the East African Community Gazette.
[2] In this reference, the four applicants jointly challenge the legality of
the said amendments to the Treaty and seek declarations that the amendment
process infringed provisions of the Treaty and norms of international law
and was of no legal effect. They also seek diverse consequential orders.
BACKGROUND
[3] The facts leading to the reference are generally not in dispute. On 27th
November 2006, this Court delivered a ruling granting an interim order in
the case of Prof. Peter Anyang’ Nyong’o & 10 others vs. The Attorney General
of Kenya & 5 others Reference No. 1 of 2006, restraining the Clerk to the
East African Legislative Assembly and the Secretary General of the East
African Community from recognizing 9 persons named in the order as duly
elected by the National Assembly of Kenya to the East African Legislative
Assembly (EALA) or permitting them to participate in any function of the
EALA until the final determination of the reference. In that reference, the
applicants challenged the legality of nomination of the 9 persons to the
EALA on the ground that the National Assembly of the Republic of Kenya did
not elect them in accordance with Article 50 of the Treaty. In apparent
reaction to the Court’s ruling, the Council of Ministers of the East African
Community (“the Council”), at its meeting on 28th November 2006, considered
the implications of the interim order and decided to recommend to the Summit
that the matter be referred to the Sectoral Council on Legal and Judicial
Affairs to study the jurisdiction of this Court and other related matters
and advise on the way forward.
[4] In a communiqué issued at the conclusion of its meeting at Arusha, on
30th November 2006, the Summit –
“Endorsed the recommendation of the Council of Ministers to reconstitute the
East African Court of Justice by establishing two divisions, a court of
First Instance with jurisdiction as per present Article 23 of the Treaty and
an Appellate Division with appellate powers over the Court of First
Instance.
Directed that the procedure for the removal of Judges from office provided
in the Treaty be reviewed with a view to including all possible reasons for
removal other than those provided in the Treaty.
Directed that a special Summit be convened very soon to consider and to
pronounce itself on the proposed amendments of the Treaty in this regard.”
[5] This sparked off a flurry of activity, the highlights of which are –
• An extraordinary meeting of the three Attorneys General of Kenya, Tanzania
and Uganda held on 7th December 2006, which considered draft amendments to
the Treaty in line with the said communiqué and recommended to the Council
that the same be approved and submitted to the Summit pursuant to Article
150 for consideration and adoption;
• A meeting of the Council held Arusha on 8th December 2006, during which
the draft amendments to the Treaty approved by the meeting of the Attorneys
General of the Partner States was considered and approved;
• Submission of the proposed amendments to the Partner States by the
Secretary General of the East African Community (“the Secretary General”) on
9th December 2006 and the respective replies dated 11th, 12th and 13th
December 2006;
• The adoption of the amendments and signing of the Instrument of Adoption
by the Summit on 14th December 2006;
• The deposit with the Secretary General of the instruments of ratification
of the amendments by the Governments of Kenya on 8th January 2007, of Uganda
on 26th February 2007 and of Tanzania on 19th March 2007.
THE AMENDMENTS
[6] Although this reference does not relate to the substance of the
amendments, it is useful to note at least their import, which is –
• To restructure the Court into two divisions, i.e. a First Instance
Division and an Appellate Division; (Article 24);
• To include, among the grounds for removing a judge of the Court from
office, the following –
• “in the case of a judge who also holds judicial office or other public
office in a Partner State, [if the judge] –
is removed from that office for misconduct or due to inability to perform
the functions of the office for any reason; or
resigns from that office following allegation of misconduct or of
inability to perform the functions of the office for any reason;
if the judge is adjudged bankrupt or convicted of an offence involving
dishonesty or fraud or moral turpitude under any law in force in a Partner
State.”
and to provide for suspension of a judge who is under investigation for
removal or is charged with such offence; (Article 26);
To limit the Court’s jurisdiction so as not to apply to “jurisdiction
conferred by the Treaty on organs of Partner States”; (Art. 27 & 30)
To provide time limit within which a reference by legal and natural
persons may be instituted, (Article 30);
To provide grounds on which appeal may be made (Article 35A); and
To deem past decisions of the Court and existing judges to be decisions
and judges of the First Instance Division respectively. (Article 140 A).
SUBJECT MATTER OF THE REFERENCE
[7] The substance of the reference as pleaded by the applicants in paragraph
17 of the reference reads –
“17. In the premises, the subject matter of this reference is that –
a) The purported declaration of the Summit, contained in the
Communiqué of 30th November 2006, was not encapsulated in an East African
Gazette Notice, as expressly stipulated by Article 11 of the Treaty, and
therefore the decision has no legal effect.
b) The explicit time-lines, as well as the elaborate procedures, for treaty
amendment, expressly stipulated in Article 150 of the Treaty, were and
continue to be infringed, and the said amendments therefore have no legal
effect. In particular –
1) There was no written proposal from either a Partner State or the Council
of Ministers as provided in Article 150(2) and (3);
2) The Secretary General of the Community did not communicate the amendments
in writing to the Partner States as provided in Article 150(3);
3) Further the 30-day notice period prescribed in Article 150(3) was not
observed;
4) The mandatory 90-day period for Partner States’ comments prescribed under
Article 150(4) and (5) was not observed;
5) There were no written comments from the Partner States as stipulated in
Article 150(5);
c) The purported ratification of the amendments by the Republic of Kenya,
the Republic of Uganda and the United Republic of Tanzania by their
respective Cabinets are an infringement of Article 150(6); further they are
unconstitutional, illegal and therefore of no legal effect;
d) In attempting or purporting to amend the Treaty while the Court was still
seized of Treaty (sic) Reference Application Number 1 of 2006, the Partner
States and the Secretariat of the Community infringed Articles 8(1)(c) and
38(2) of the Treaty. As a consequence the entire purported process of treaty
amendment is vitiated and of no legal effect;
e) The Summit, Council of Ministers, Office of the Secretary General and the
3 Partner States’ Attorneys General excluded all the other organs of the
Community, the Partner States governments and more importantly, the people
and registered interest groups of East Africa in the irregular and rushed
Treaty amendment process. This infringes both the Preamble and Articles 1,
5, 6, 7, 8, 9, 11, 38 and 150 of the Treaty.”
[8] We should observe at the outset that although the aforesaid pleading was
not amended and none of the averments therein was otherwise withdrawn,
learned counsel for the applicants addressed the Court only on the averments
in paragraphs 17 (b) 4) and 17(e) in the submissions under issue no.2, and
on those in paragraph 17(d) in the submissions under issue no.3. No evidence
was adduced in support of, and learned counsel did not canvass the averments
in paragraph 17(a), 17(b) 1), 2), 3) and 5) and 17(c) obviously because they
were inconsistent with the available evidence, and no counter evidence to
support them was adduced. We shall therefore regard those particular
averments as abandoned.
[9] Although the reference is stated to be made under twelve articles of the
Treaty, the only article under which any legal or natural person may bring
such a reference is article 30 of the Treaty. The five applicants are legal
persons. The 1st applicant is a Company limited by Guarantee, and registered
in Tanzania as such and in Kenya and Uganda as a Foreign Company. Its
membership consists of individual lawyers as well as five national
associations of lawyers of Kenya, Tanzania, Uganda, Rwanda and Zanzibar. The
2nd, 3rd and 4th applicants are corporate entities established by national
statutes of Kenya, Tanzania and Uganda respectively; and the 5th applicant
is a registered society under Zanzibar legislation.
[10] The four respondents are cited in the reference in their respective
representative capacities, representing the Republic of Kenya, the United
Republic of Tanzania, the Republic of Uganda and the East African Community,
respectively.
[11] The reference was filed in the Court Registry on 18th May 2007 and was
followed by separate responses from all the respondents. Upon conclusion of
the pleadings and in pursuance of rule 52 of the Rules of Procedure, the
Court held a scheduling conference on 2nd November 2007 during which the
parties inter alia framed the following issues for determination by the
Court, namely –
1. Whether the reference is properly before the Court;
2. Whether the process of amending the Treaty was proper and lawful;
3. Whether the said amendments were carried out in good faith;
4. Whether the amendments as carried out can be stopped; and
5. Whether the amendments will strengthen the Community.
[12] Hearing did not proceed promptly due several adjournments initially
with a view to settlement and subsequently because of post-elections
problems in Kenya. Hearing finally commenced on 7th May 2008 with oral
submissions of counsel, the evidence relied on by all the parties being by
affidavits filed along with the pleadings.
[13] Prof. Fredrick Ssempebwa the learned lead counsel for the applicants
made submissions on all the framed issues. He was assisted by Mr. Alex
Mgongolwa and Mr. Donald Deya who shared the submissions in reply in reply
to submissions for the respondents. Learned counsel for the respondents
share the framed issues among themselves. Mr. Wilbert Kaahwa, learned
Counsel to the Community who appeared for the 4th respondent argued issues
no, 1 and no. 5 on behalf of all the respondents. Mr. Anthony Ombwayo,
learned counsel for the 1st respondent, Mr. Henry Oluka, learned counsel for
the 3rd respondent, and Mr. Joseph Ndunguru counsel for the 2nd respondent,
did likewise respectively on issues no. 2, no. 3, and no. 4.
SUBMISSIONS ON ISSUE NO.1
[14] The first framed issue, namely “Whether the reference is properly
before the Court” could have been taken as a preliminary objection, but the
parties argued it along with the rest of the issues. Primarily, it arose
from the responses of the 1st and 3rd respondents. The former pleaded that
the subject matter of the reference, being the result of a decision of one
organ of the Community, was not subject to review by this Court under
Article 30. The latter pleaded that the reference was incompetent and
misconceived because there was no dispute amongst the parties to the Treaty.
Additionally, the 2nd and 4th respondents pleaded that under international
law, the applicants were not competent to challenge the sovereign right of
the Partner States to amend the Treaty to which they were parties.
[15] Learned counsel for the respondents explained that the contention that
the reference was not properly before the Court was not in respect of the
Court’s jurisdiction or competence to determine the reference, but rather it
was in respect of the applicants’ lack of capacity to bring the reference to
court. On the one hand he submitted that it is a trite principle under
international law, that the making of treaties, as well as the amendment
thereof, is a sovereign function and a preserve of states as the contracting
parties. The individual subjects of the contracting states have neither a
role to play in the function nor a right to challenge the execution of the
function by the contracting states. In the instant case the right to amend
the Treaty by agreement of all the Partner States was reiterated under
Article 150. He maintained that the applicants had no capacity to challenge
the Partner States in the exercise of that right.
[16] Secondly, learned counsel submitted that the reference was not properly
before this Court because it lacked one of the essential elements of a
reference under Article 30 of the Treaty. According to learned counsel, a
reference is properly before this Court under that article only if –
• the applicant is a resident of a Partner State;
• the subject matter of the reference is “an Act, regulation, directive,
decision or action of a Partner State or of an institution of the
Community”; and
• the ground of the reference is that the challenged subject matter is an
infringement of a provision of the Treaty or otherwise unlawful.
[17] He maintained that what is envisaged under the second requirement is
not something done or made by the Partner States together as contracting
parties or by an organ of the Community. According to learned counsel, what
is envisaged is what is done or made by a single Partner State or an
institution of the Community, which is unlawful or an infringement of the
Treaty. Learned counsel submitted that in the instant case, the second
requirement was not satisfied, in as much as the subject matter of the
reference was not an Act, regulation, directive, decision or action of a
single Partner State or of an institution of the Community.
[18] Learned counsel urged us to interpret the provisions of Article 30 of
the Treaty strictly, and not to construe them as impinging on the
sovereignty of the Partner States; emphasizing that under that article, only
an Act, regulation, directive, decision or action of a single Partner State
or an institution of the Community may be challenged; but not that of an
organ of the Community. He argued that to the extent that in this reference
the applicants challenge the legality of the decision of the Summit to amend
the Treaty, the reference does not fall within the ambit of Article 30 and
is therefore not properly before this Court. He submitted that the decision
of this Court in Callist Mwatela and others vs. Secretary General of the EAC,
Reference No.1 of 2005, which the applicants rely on, is not a proper
authority because the pertinent question, whether a directive, decision or
action of an organ of the Community is justitiable under Article 30 was not
raised and this Court did not pronounce itself on it.
[19] While conceding that the making of a treaty, as well as the amendment
thereof, is a sovereign function of state, learned counsel for the
applicants, submitted that each treaty must be interpreted in the context of
its objectives. He stressed that the main objective of the Treaty in the
instant case is the phased integration of the Partner States into a Customs
Union, a Common Market, a Monetary Union and ultimately a Political
Federation. He invited the Court to take into consideration the historical
context of the Treaty when interpreting its provisions. In that regard he
recalled that the past failed East African Community was not people centered
and noted that, in contrast, the Treaty provides in Article 7(1) (a), that
the operational principles for achieving its objectives shall include
“people centered and market driven co-operation”. Counsel submitted that in
furtherance of that principle, the Treaty confers rights on the people of
East Africa and permits them to enforce those rights through this Court. In
so doing and in binding themselves under Article 150 as to the procedure for
amending the Treaty, the Partner States surrendered some degree of
sovereignty.
[20] With regard to the scope of Article 30, learned counsel recalled the
Court’s duty under Article 23, to ensure adherence to law in the
interpretation and application of the Treaty, and the empowerment of natural
and legal persons in East Africa under Article 30, to challenge any
illegality in the application of the Treaty by a Partner State or
institution of the Community, and submitted that Article 30 cannot be
construed as excluding from such challenge, illegality by an organ of the
Community. He invited the Court to apply the purposeful approach in
interpreting the article and to hold that any Act, regulation, directive,
decision or action by an organ of the Community is within the ambit of
Article 30 and may be challenged under it. Learned counsel cited as
authority for that proposition, the decision of this Court in Callist
Mwatela and others vs. Secretary General of the EAC, (supra), where the
decisions/directives of the Council of Ministers, an organ of the Community,
were successfully challenged under Article 30.
[21] In reply to the submissions by the respondents’ counsel, learned
counsel for the applicants further pointed out that the two main arguments
in support of the respondents’ contention contradicted each other. Whereas
on the one hand the respondents argued that the reference was incompetent
for purporting to challenge the sovereign function of the Partner States, on
the other hand they argued that it was incompetent for purporting to
challenge the decision and action of an organ of the Community. Learned
counsel maintained that the reference was brought in respect of decisions
and actions of the Partner States and were therefore properly before the
court as envisaged under Article 30.
CONCLUSION ON ISSUE NO.1
[22] In this reference, the applicants do not challenge the sovereign right
of the Partner States to amend the Treaty. They only contend that under
Article 150 of the Treaty the Partner States bound themselves to follow a
prescribed procedure in exercising that right and that a deviation from that
procedure constitutes an infringement of the Treaty. They argue that in
effecting the amendments in issue in the instant case, the prescribed
procedure was not complied with, and that consequently the amendments
amounted to an infringement of the Treaty. We agree in as much as the
Partner States bound themselves to abide by a specified procedure in the
process of amending the Treaty, they cannot amend the Treaty in any other
way. To that extent the Partner States agreed to cede a degree of their
respective sovereignty. In our view, therefore, the question whether the
amendment process in issue in this reference amounts to an infringement of
the Treaty is justitiable and cannot be barred on the ground of sovereignty
of the Partner States.
[23] Secondly, the applicants do not claim to have any inherent right to
make this reference questioning the manner in which the Partner States
exercised their sovereign right to amend the Treaty. They, as residents of
the Partner States, rely on the right the Treaty vests in them under Article
30, which reads –
“Reference by Legal and Natural Persons
Subject to the provisions of Article 27 of this Treaty, any person who is
resident in a Partner State may refer for determination by the Court, the
legality of any Act, regulation, directive, decision or action of a Partner
State or an institution of the Community on the grounds that such Act,
regulation, directive, decision or action is unlawful or is an infringement
of the provisions of the Treaty.” (Emphasis is added)
[24] Ordinarily at international law, a treaty between or among states, like
any contract, protects interests of or creates rights for the parties
thereto and imposes duties and obligations on the parties to it. Neither
another state that is not a party, nor a legal or natural person, may
directly claim any interest or right under it, notwithstanding that that
other state nor person derives benefit from implementation and operation of
the treaty. However, nothing prevents the state parties to a treaty to vest
in any person or other state an enforceable right.
[25] It is clear from the provision of Article 30 that the residents of the
Partner States are vested with the right to access this Court for the
purpose of challenging any form of infringement of provisions of the Treaty.
Several provisions in the Treaty lend weight to the view that this was a
deliberate provision to ensure that East Africans for whose benefit the
Community was established participate in protecting the integrity of the
Treaty. The following excerpts from the Treaty in particular, stand out to
illustrate that deliberate intent. First, in the Preamble to the Treaty, the
fourth recital recalls and highlights that one of “the main reasons that
contributed to the collapse of the (previous) East African Community” in
1977, was “lack of strong participation of the private sector and civil
society in the co-operation activities”; and the eleventh recital records
that the parties to the Treaty “are resolved to create an enabling
environment in all the Partner States in order to attract investments and
allow the private sector and civil society to play a leading role in the
socio-economic development activities”
[26] Secondly, Article 7 provides –
“1. The principles that shall govern the practical achievement of the
objectives of the Community shall include:
(a) people-centered and market-driven co-operation;”
[27] In our view, therefore, it would be a negation of that deliberate
intent to bar the reference on the ground that the applicants had no
capacity to bring a reference challenging a sovereign function of the
Partner States.
[28] Lastly, we are not persuaded by the respondents’ urging that we give to
Article 30, a narrow interpretation that excludes from the application of
the Article, infringement of the Treaty by an organ of the Community. With
due respect to learned counsel, it seems to us that such a restrictive
interpretation is not based on a sound ground. It is only based on the fact
that no mention of infringement of the Treaty by an organ of the Community
is made in Article 30. It is noteworthy that the Treaty provides for two
other similar references to this Court. Article 28 authorises a Partner
State to make a similar reference in respect of a failure to fulfill an
obligation under the Treaty or of an infringement of a provision thereof on
the part not only of another Partner State or an institution of the
Community but also of an organ of the Community. On the other hand, Article
29 empowers the Secretary General, subject to direction by the Council, to
make a similar reference to the Court in respect of such a failure or
infringement by a Partner State only. We note the disparity in the three
articles depending on who is responsible for the alleged failure or
infringement, but having regard to the purpose of the provisions, namely to
ensure compliance with provisions of the Treaty and to provide for
empowerment of inter alia any resident to seek judicial adjudication where
there is allegation of non-compliance, we are inclined to the view that a
restrictive interpretation would defeat that purpose.
[29] We agree that in Callist Mwatela and others vs. Secretary General of
the EAC, (supra) the subject matters of the reference were decisions and
actions of organs of the Community, but no one raised the point of their
justitiability. In our view, however, that is not a substantial point.
Legally the organs are not corporate entities, but are components of the
Community, which is the corporate body. Ordinarily, an act of an organ in
discharging its functions is an act of the corporate Community. However, in
areas where a function of the Partner States has not been ceded to the
Community, an organ may discharge the function in the context of “the
Partner States acting together.”
[30] In the instant reference, the alleged infringement is in essence not
the diverse individual decisions, directives or actions of the Summit or
other organs of the Community set out in the reference. The alleged
infringement is the totality of the process of the Treaty amendment, which
amendment was, and can only be made by the parties to the Treaty, namely the
Partner States, acting together through the organs of the Community. It
follows that if in the amendment process the Treaty was infringed, it was
infringed by the Partner States. The reference therefore cannot be barred on
the ground that its subject matter are decisions and actions of organs of
the Community.
[31] For the reasons we have set out, we find and hold that the reference is
properly before this Court. Accordingly we answer issue no.1 in the
affirmative.
SUBMISSIONS ON ISSUE NO.2
[32] The second issue revolves around the construction of Article 150 which
reads –
“Amendment of the Treaty
1. The Treaty may be amended at any time by agreement of all the Partner
States.
2. Any Partner State or the Council may submit proposals for the amendment
of this Treaty.
3. Any proposals for the amendment of this Treaty shall be submitted to the
Secretary General in writing who shall, within thirty days (30) of its
receipt, communicate the proposed amendment to the Partner States.
4. The Partner States which wish to comment on the proposals shall do so
within ninety days (90) from the date of the dispatch of the proposal by the
Secretary General.
5. After the expiration of the period prescribed under paragraph 4 of this
Article, the Secretary General shall submit the proposals and any comments
thereon received from the Partner States to the Summit through the Council.
6. Any amendment to this Treaty shall be adopted by the Summit and shall
enter into force when ratified by all the Partner States.” (Emphasis is
added)
[33] As noted earlier in this judgment, issue no.2 is: “Whether the process
of amending the Treaty was proper and lawful”. The thrust of the submissions
by learned counsel for the applicants on this issue is that the amendment
process was flawed in two respects, namely failure to abide by the mandatory
time-frame prescribed under Article 150(4) and (5), and absence of adequate
or any consultation of “the people” on the proposals for amendment, as
envisaged under the Treaty.
[34] Learned counsel contended that whether the proposal is by all the
Partner States together or by any one of them or the Council, it must be
processed through the stages set out in Article 150 under paragraphs (2) to
(6) because they are all mandatory. He stressed in particular that the
period of 90 days from the time the Secretary General communicates the
proposal to the Partner States must expire before the proposal with the
comments from the Partner States is submitted to the Summit through Council,
even if the Secretary General receives the comments well before expiry of
that period, as happened in the instant case. According to counsel, the 90
days period must not be abridged because it was prescribed for the purpose
of allowing wide consultation on any proposed amendment, in order to
maintain the whole Treaty as people-centered. In this regard, he invited the
Court to take judicial notice of the extensive consultation that was carried
out on the proposal to “Fast-track Political Federation”, and the on-going
wide consultation on extension of the Court’s jurisdiction.
[35] On the basis of his analysis of Article 150, learned counsel argued
that although in the communication to the Partner States and in the
submission to the Summit the Secretary General purported to do so in
accordance with Article 150(3) and (5) respectively, the submission of the
proposed amendments to the Summit before expiry of the prescribed 90 days
was an infringement of Article 150(5). He argued further that the undisputed
fact that the amendment process from initiation to conclusion took only a
few days, is sufficient proof that the consultations envisaged under the
Treaty, were not carried out, and the Treaty was thereby infringed.
[36] Learned counsel for the respondents submitted that the Treaty may be
amended in one of two different ways. To put it in his own words, he said –
“It is trite law that a treaty can be amended in two modes. The first mode
of amending a treaty is by agreement. This is an agreement by the Partner
States to amend the provisions of the treaty. The second mode of amendment
is as provided for under Article 150(2) to (5) of the Treaty …………… that is a
set out procedure for amendment of the Treaty where there is no agreement.
[37] He submitted that the first mode was recognized at international law
and was embodied in Article 39 of the Vienna Convention on the Law of
Treaties, (“the Vienna Convention”) and was reiterated in Article 150(1) of
the Treaty. Initially, learned counsel contended that in the instant case
the Partner States amended the Treaty by agreement, applying the first mode
of amendment, when in the communiqué at the Summit meeting of 30th November
2006, the Heads of State endorsed the recommendations of the Council and
issued conclusive directives –
• to reconstitute the East African Court of Justice into two divisions;
• to review the procedure for removal of judges from office; and
• to convene a special Summit to consider the amendments.
[38] In the course of his submissions, however, without conceding that the
communiqué did not constitute an effective amendment of the Treaty, learned
counsel accepted that in addition to the agreement of the Partner States to
amend the Treaty that is evidenced by the communiqué, there was compliance
with the procedure set out in paragraphs (2) to (5) of Article 150 and in
particular stressed that paragraphs (4) and (5) were not infringed.
[39] The substance of learned counsel’s argument in regard to the timeframe
set out in paragraphs (4) and (5) of Article 150 may be paraphrased thus:
Where one act is required to be done within a set period and a second act is
required to be done after expiry of the said set period, for purposes of
doing the second act, the set period is deemed to expire when the first act
is done. Learned counsel maintained that in the instant case, when the
Partner States submitted their comments on the proposed amendments within
the set period of 90 days, for purposes of the next step of submitting the
proposed amendments with the comments to the Summit, the 90 days period was
deemed to lapse upon the Secretary General receiving the last of the
comments from the Partner States. Consequently, according to learned
counsel, the submission of the proposed amendments with the comments well
before the actual expiry of 90 days did not constitute an infringement of
Article 150(5) of the Treaty. In support of his argument, learned counsel
referred to the cases of Alida Singh vs. Vanel Singh (1956) RD-SC 83;
Jaramogi Oginga Odinga and others vs. Zacherus Chesoni Application No.602 of
1992 (K) and David Wakairu Murathe vs. Samuel Macharia Civil Appeal No.171
of 1998 (K), which we did not find helpful.
[40] Furthermore, learned counsel opposed the applicants’ proposition that
the Secretary General has to await the actual expiration of 90 days before
the submission to the Summit even after all the comments are received. In
his view such interpretation renders the provision absurd. Article 150 does
not provide for mandatory or any consultation and therefore requiring the
Secretary General after receiving all the comments to postpone submission of
the same for further action would be pointless and absurd.
CONSIDERATION AND CONCLUSION OF ISSUE NO.2
[41] There are two components in issue no.2, which in the interest of
clarity we shall consider separately. We shall first consider whether the
amendment process infringed the Treaty by reason of noncompliance with
Article 150, and then consider if it infringed the Treaty in any other way.
[42] We should mention at the outset that we do not agree with the
submission by counsel for the respondents that Article 150 provides for two
modes of amending the Treaty. In our view the provision in Article 150(1) is
a general provision reiterating the position at international law as
reflected in Articles 39 and 40 of the Vienna Convention on the Law of
Treaties (Vienna Convention). Article 39 substantially provides that a
treaty may be amended by agreement between the parties to it. That indicates
the capacity to amend not the procedure for amending. Article 40 makes that
quite clear by providing that unless otherwise provided in the treaty –
“Any proposal to amend a multilateral treaty as between all the parties must
be notified to all the contracting States, each one of which shall have the
right to take part in:
a) the decision as to the action to be taken in regard to that proposal
b) the negotiation and conclusion of any agreement for the amendment of the
treaty.”
[43] In the instant case, the Treaty does not provide otherwise. Rather in
paragraphs (2) to (6) of Article 150 it makes provisions for the parties to
it, i.e. the Partner States, to participate in the amendment process. As we
noted earlier in this judgment, the bone of contention is whether the
provisions in those paragraphs were complied with in making the impugned
amendments. In view of the abandoned pleadings we alluded to earlier in this
judgment, we need focus only on the provisions in two of the paragraphs,
namely paragraphs (4) and (5) of Article 150.
[44] Paragraph (4) provides that the Partner States wishing to comment on
proposed amendments shall do so within 90 days from the date the proposals
were dispatched to them. Paragraph (5) provides that after expiration of
that period (90 days), the Secretary General shall submit the proposed
amendments, with any comments thereon, to the Summit through the Council.
[45] It is not in dispute that the Secretary General submitted the proposed
amendments to the Summit long before expiry of the period of 90 days from
the day he communicated them to the Partner States. It is indeed recorded in
the Report of the 4th Extraordinary Meeting of the Summit held on 14th
December 2006 that pursuant to Article 150 of the Treaty, the Summit
received the proposed amendments with the comments, not through the Council,
but directly from the Secretary General at that meeting. That was only 5
days after his communication to the Partner States, and therefore well
before expiration of 90 days’ period.
[46] We have given anxious consideration to the opposing arguments on the
interpretation to be placed on the expression “After the expiration of the
period prescribed under paragraph 4 of this Article” appearing in paragraph
(5) of Article 150. Counsel for the applicants urged that we must give it
its plain ordinary meaning that translates to: “after expiration of 90
days”, which is the period prescribed under paragraph 4. However, we cannot
overlook the force of the argument by counsel for the respondents that to
construe the paragraph as requiring the Secretary General, in mandatory
terms, to await the expiry of 90 days, could lead to unreasonable if not
absurd result, where the Secretary General has received the comments from
all the Partner States well ahead of the expiry of that period, as happened
in the instant case.
[47] The Vienna Convention sets out international rules of interpretation of
treaties. Article 31 that comprises the General Rule of Interpretation reads
–
“1. A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and
in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall
comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the
parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with
the conclusion of the treaty and accepted by the other parties as an
instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the
interpretation of the treaty or the application of its provisions; (b) any
subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations
between the parties.
4. A special meaning shall be given to a term if it is established that the
parties so intended.” (Emphasis added)
[48] Article 32 then provides that where, in interpreting a treaty, the
application of Article 31 leaves the meaning ambiguous or obscure or leads
to a result which is manifestly absurd or unreasonable, recourse may be had
to supplementary means of interpretation including the preparatory work of
the treaty and the circumstances of its conclusion.
[49] Taking the said general principle of interpretation enunciated in
Article 31 of the Vienna Convention we think that we have to interpret the
terms of the Treaty not only in accordance with their ordinary meaning but
also in their context and in light of their objective and purpose. Primarily
we have to take objective of the Treaty as a whole, but without losing sight
of the objective or purpose of a particular provision. In that context, in
our view, the objective and purpose of Article 150 is to stress that the
Treaty, as a contract binding on all the Partner States, may be amended only
if all the Partner States agree; and to regulate the procedure for
processing the amendments up to conclusion.
[50] With due respect to learned counsel for the applicants, we are not
persuaded by his argument that the purpose of prescribing the period of 90
days in paragraph (4) is to provide for the period that every Partner State
must spend undertaking unspecified consultations. When the Court sought from
him clarification, he asserted that the expression “After the expiration of
the period prescribed in paragraph 4” was put there for a purpose and he
went on to say –
“It is in the context of the whole Treaty which is people-centered … So, our
contention is that this is the period that is allowed for consultation. In
actual fact, the consultation may not take place, but this was the purpose.”
(Emphasis is added)
[51] That answer exposes how the interpretation he urged for could lead to
absurd results. In our view, the purpose of paragraph (4), as stated in the
paragraph itself, is to limit the time for commenting on proposed amendments
by any Partner State wishing to do so. In construing paragraph (5)
therefore, it cannot be correct to transform that purpose into one of
prescribing a mandatory period for unspecified consultations.
[52] The clear core objective and purpose of paragraph (5) on the other hand
is to direct that the Secretary General shall submit the proposed amendments
with the comments from the Partner States, if any, to the Summit. It appears
to us that the cross reference to the period prescribed under the preceding
paragraph was made upon a presupposition of the Partner States taking the
whole period of 90 days to comment. In our view it does not cover the
scenario where the Partner States take a shorter period to comment. We think
it is more reasonable to conclude, as we hereby do, that paragraph (5) does
not expressly or impliedly require the Partner States to carry out any
consultations, nor does it expressly or impliedly require the Secretary
General to hold the proposed amendments and comments thereon received from
Partner States until expiration of the 90 days. The correct construction
must be that the provision directs the Secretary General to submit them to
the Summit not later than the expiry of that period.
[53] Accordingly, we find that the submission of the proposed amendments to
the Summit by the Secretary General within 5 days after his communication to
the Partner States was not an infringement of paragraph (5) of Article 150
of the Treaty specifically.
[54] We now turn to consider if by reason of failure to carry out wide
consultations on the proposals for the amendments, the process constituted
an infringement of the Treaty in any other way. It is useful at this point
to recall the sequence of the critical events in the process.
[55] Pursuant to the Summit communiqué of 30th November 2006, an
Extraordinary Meeting of the Attorneys General held on 7th December
considered and concluded the draft amendments, which it recommended the
Council to approve and submit to the Summit. On 8th December, the Council
met and approved the draft, following which the Secretary General addressed
a letter dated 9th December 2006 to the Ministers responsible for the East
African Community Affairs in the three Partner States in which he wrote -
“Re: Proposals for the Amendment of the Treaty for the Establishment of the
East African Community.
[56] I have the honour to inform you that I have received proposals from the
Council of Ministers for the amendment of the Treaty for the establishment
of the East African Community.
[57] The proposals are shown in Part 2 of the Report of the 12th
Extraordinary Meeting (Ref EAC/CM/EX/12/2006) which is enclosed herewith. In
accordance with Article 150(3) of the Treaty, I request you to facilitate
your Partner State’s consideration of these proposals. Given the urgency on
this matter, please submit the comments to me by Monday, 11th December 2006.
This will enable me submit the proposals to the Summit of Heads of State for
consideration and adoption.” (Emphasis is added)
[58] The responses were prompt. Uganda’s First Deputy Prime
Minister/Minister of East African Affairs replied on 11th December,
intimating simply that Uganda had no objection to the proposed amendments to
the Treaty. The Kenya Minister of East African Community replied on 13th
December also intimating that Kenya concurred with the proposed amendments.
[59] Only the Permanent Secretary of the Tanzania Ministry of East African
Cooperation, who replied on 12th December, alluded to any consultation on
the proposals. He wrote in part –
“We have reviewed the Report of the 12th Extraordinary Meeting… (Ref. No.
EAC/CM/EX/12/2006) dated 8th December 2006 and Tanzania is in agreement with
the proposals therein. Given the urgency of the matter and the
professionalism shown by the Partner States Attorney Generals (sic) and the
Council of Ministers, the proposals can now be submitted to the Higher
Authorities for consideration.
Please note that December 9th 2006 was Tanzania’s 45th Independence Day
celebrations and 10th December 2006 was a Sunday, hence consultations could
not have been done effectively during these days.” (Emphasis is added)
[60] These were the only comments from the Partner States on the proposed
amendments. For the purposes of paragraph (4) of Article 150, therefore, the
Partner States through their responsible officials made the comments within
the prescribed period of 90 days after the Secretary General’s
communication. The earliest was 2 days, and the latest was 4 days after the
communication.
[61] It is evident from the aforesaid correspondence that no serious
widespread consultations on the amendments within the Partner States were
intended let alone carried out. It is noteworthy that according to the
record of the meeting of the Attorneys General, even communication to the
Partner States under paragraph (4) was not contemplated since the
recommendation was that Council should approve the draft and submit it to
the Summit for consideration and adoption. It is also noteworthy that
apparently the persons whose initial recommendation to make the amendments
was endorsed by the Summit in its communiqué and who later approved the
Attorneys General’s draft amendments to be communicated to the Partner
States, are virtually the very persons who received and considered the
amendment proposals in the name of the Partner States. The Kenya Minister
made no pretensions about consultations when in his reply to the Secretary
General he said –
“I have studied the report and the proposals therein and Kenya concurs with
the proposed amendments.”
[62] Even in the case of Tanzania where the Permanent Secretary’s reply
appears to imply that after the public holiday on Independence Day and
Sunday there was some consultation on Monday the 11th December, there cannot
have been wide or much consultation on the drafted amendments before he sent
the reply on 12th December.
[63] As we observed earlier in this judgment, under Article 7 the people’s
participation in cooperation activities set out in, and envisaged under the
Treaty, is ranked high among the operational principles of the Community.
The best illustration in the text of the Treaty is Article 30 where
specifically, every resident of a Partner State is empowered to access this
Court for the purpose of participating in ensuring compliance with the
Treaty.
[64] However, neither Article 150 nor any other provision of the Treaty
specifies the modality and extent of people’s participation in cooperation
activities in general and in the amendment of the Treaty in particular.
Ideally, it would have been easier for this Court to uphold and apply the
proposition that every amendment of the Treaty must involve prior
consultation of the people, if the draftsman had provided the measure for
determining such involvement or participation, as is done for example, in
integration treaties that provide for consulting the people through
referenda. Undoubtedly other forms of involving and consulting the people
are also possible.
[65] In this regard, we agree with learned counsel for the applicants that
we should take judicial notice of two major activities subsequent to the
Treaty coming into force, which were preceded by extensive consultations. We
do take judicial notice of the fact that consultation on the “Zero Draft
Protocol to Operationalise Extended Jurisdiction” of this Court is still
on-going. We also take judicial notice of the fact that the proposal by the
Summit to Fast-trackpolitical federation of the Partner States was subjected
to extensive consultations of diverse categories of the people in the
Partner States, and ended in a determination that there was no consensus
among the people to alter the sequence of stages set out in Article 5(2) of
the Treaty for the gradual phasing of the integration process towards the
ultimate stage of political federation. Although the two sets of
consultations were not conducted uniformly, they undoubtedly reflect
agreement among the Partner States that the principle of people-centered
cooperation is also applicable to the Treaty amendment process.
[66] In addition to these two examples mentioned by counsel for the
applicants, we also take judicial notice of the consultations that preceded
the conclusion of the Protocol on the Customs Union and the on-going
consultations on the Common Market, which is the next stage in the
integration process.
[67] As we noted earlier in this judgment, the Vienna Convention provides in
Article 31 that the context of a treaty includes the text as well as its
preamble and annexes, and that for the purpose of interpretation, there
shall be taken into consideration inter alia –
“any subsequent practice in the application of the treaty which establishes
the agreement of the parties regarding its interpretation.”
[68] In accordance with this rule, we take into consideration the said
series of consultations as having established agreement among the parties to
the Treaty that in seeking to apply or alter provisions of the Treaty, the
people shall be consulted. As to the extent of such consultations, we think
that until more elaborate modalities are evolved as the Community continues
to grow, the resolve to allow participation of the private sector and civil
society recited in the preamble, and the objective to enhance and strengthen
partnerships with the private sector and civil society enunciated in Article
5(3) (g), provide adequate guidelines.
[69] We think this is the interpretation that gives full meaning to the
context of the Treaty. It is common knowledge that the private sector and
civil society participated in the negotiations that led to the conclusion of
the Treaty among the Partner States and, as we have just observed, that they
continue to participate in the making of Protocols thereto. Furthermore, as
we noted earlier in this judgment, Article 30 entrenches the people’s right
to participate in protecting the integrity of the Treaty. We think that
construing the Treaty as if it permits sporadic amendments at the whims of
officials without any form of consultation with stakeholders would be a
recipe for regression to the situation lamented in the preamble of “lack of
strong participation of the private sector and civil society” that led to
the collapse of the previous Community.
[70] In conclusion we find that failure to carry out consultation outside
the Summit, Council and the Secretariat was inconsistent with a principle of
the Treaty and therefore constituted an infringement of the Treaty within
the meaning of Article 30. Accordingly, we answer issue no.2 in the
negative.
SUBMISSIONS ON ISSUE NO.3
[71] The argument of learned counsel for the applicants on issue no.3 may
also be sub-divided in two distinct aspects. The first aspect is the
particular argument that because the impugned amendments were made in
reaction to the interim order of the Court in Anyang’ Nyong’o Case (supra),
the undertaking of the amendments was an infringement of Articles 8(1) (c)
and 38(2) and was ipso facto done in bad faith. The second aspect is the
general argument that inference of bad faith ought to be drawn from the
manner in which the amendments were conceived and processed and from the
content of the amendments.
[72] The first aspect was pleaded in paragraph 17(d) of the reference as
part of the subject matter of the reference. In the pleading, however, what
was referred to the Court was the assertion that “attempting or purporting
to amend the Treaty while the Court was still seized of Application No.1 of
2006” infringed the Treaty and consequently vitiated the entire amendment
process rendering it of no legal effect. It could as well have been argued
under issue no.2. The second aspect was not part of the subject matter of
the reference. It appears to have arisen from the averment in the response
of the 4th respondent who pleaded in paragraph 7 that the process of
amendment of the Treaty “was undertaken in utmost good faith in accordance
with the Treaty...”, which begs the question whether that aspect of the
issue was properly referred to the Court under Article 30. We shall dispose
of the two aspects separately.
[73] Article 8(1) (c) is an undertaking by the Partner States to abstain
from any measures likely to jeopadise achievement of objectives of the
Treaty or the implementation of its provisions. Article 38 is concerned with
the principle of acceptance of the Court’s decisions and in paragraph (2) it
provides –
“Where a dispute has been referred to the Council or the Court, the Partner
States shall refrain from any action which might be detrimental to the
resolution of the dispute or might aggravate the dispute.”
[74] The contention for the applicants is that the impugned amendments were
undertaken with a view to threaten and cow down the Court. Learned counsel
for the applicants premised his argument on a remark appearing in the record
of the meeting of the Council held on 28th November 2006, during the
deliberations on the implications of the Court’s interim order, to the
effect that “there is need for the organs of the Community to appreciate and
support each other in the discharge of the Community functions.” He invited
the Court to infer from this remark that the Council was unhappy and even
angry with the Court order, hence the inclusion in the recommended
amendments the expansion of grounds for removal of judges of the Court.
[75] Much of learned counsel’s argument was geared to showing bad faith.
However, when asked by the Court to explain how the reaction of the Council
which was ultimately endorsed by the Summit in the communiqué was likely to
be detrimental to the resolution of the dispute or to aggravate it, the
thrust of learned counsel’s response was as follows: The decision to amend
the Treaty was a reaction to the Court’s interim order in Anyang’ Nyong’ o
case. Both the Council and the Summit were aware that the resolution of the
dispute in that case was still pending in the Court. The proposal to extend
the grounds for removal of judges from the Court was calculated to
intimidate the judges and consequently was likely to be detrimental to the
resolution of the dispute. In his lengthy reply on issue no.3, learned
counsel for the respondents did not address this aspect. In our view there
is substance in the arguments of learned counsel for the applicants,
particularly in the context of the surrounding circumstances, whose summary
below gives a clear understanding of this conclusion.
[76] It is common knowledge that at all the material times the two members
of the Court from the Republic of Kenya had been victim of a lightening
scoop on the Kenya Judiciary in 2003 that saw 23 judges suspended from
service on general allegations of corruption. The allegations against them
were to be inquired into by tribunals. Subsequently, one of the two judges
of this Court was cleared of the allegations against him without their being
inquired into by the tribunal. He voluntarily retired from the Kenya
judiciary thereafter. The inquiry in respect of the other judge has not
progressed up to the present day, 5 years down the road. Both judges were on
the panel of the bench that was seized of the Anyang’ Nyong’o case (supra).
[77] The pertinent amendment extending the grounds for removal of a judge is
that under Article 26(1) (b) the Summit may remove from office –
“(b) …a Judge who also holds judicial office or other public office in a
Partner State [if that judge] –
(i) is removed from that office for misconduct or due to inability to
perform the functions of the office for any reason; and
(ii) resigns from that office following allegation of misconduct or of
inability to perform the functions of the office for any reason;
2. Where –
(a) …
(b) a Judge is subject to investigation by a tribunal or other relevant
authority of a Partner State with a view to his or her removal from an
office referred to in paragraph 1(b); or
(c) the Summit may, subject to paragraph 2B, suspend the Judge from the
exercise of the functions of his or her office.”
[78] The only reasonable and irresistible inference from these provisions is
that, while they may be of general application, they were designed to suit
the circumstances of the two Kenya judges on this Court. The test to apply
in determining if that move infringed Article 38(2) is not whether or not it
intimidated or was calculated to intimidate the two judges or any other
judge of the Court. The obligation under the Article is not to refrain from
an act that is detrimental but from one that might be detrimental. In our
considered view, given the circumstances we have just summarized, the move
was capable of unduly influencing the pending judgment in Anyang’ Nyong’o
case (supra) and thereby be detrimental to the just resolution of the
dispute. The fact that it did not have that effect is credit to the sense of
independence on the part of the two judges together with the other judges on
the panel, and to their resolve to uphold the principles of judicial
integrity and judicial independence. We therefore hold that that part of the
amendments constituted an infringement of Article 38(2) of the Treaty.
[79] Turning to the second aspect of issue no.3, we reiterate what we have
just observed that it is not part of the subject matter referred for
determination under Article 30 of the Treaty. The reference was not for
determination whether the amendments were made in bad faith, but rather
whether the amendment process did not comply with specified provisions of
the Treaty, and therefore infringed them. As submitted by learned counsel
for the respondents, while in the 4th respondent’s response and in three of
the affidavits supporting the respondents’ pleadings it was positively
asserted that the amendments were made in good faith, the applicants were
not assertive in their pleadings that the amendments were made in bad faith,
save that in the affidavit supporting the reference there was an oblique or
implicit mention of the deponent’s belief that “amendments (to the Treaty)
should be made in good faith”. The emphasis in the reference and the
supporting affidavit is that the amendment process was illegal for
infringing provisions of the Treaty. Strictly therefore, the pleading in the
4th respondents’ response that the amendments were made in good faith is
more in the nature of “a cross-reference”, which is not provided for or
envisaged under Article 30. We are therefore constrained to observe for
future guidance, that upon further reflection we think that we should not
have allowed the framing of this issue as it was framed. However, having
allowed not only the framing of the issue but also full arguments on it, we
consider it prudent to make our views on it known.
[80] In submitting that the impugned amendments were not carried out in good
faith, learned counsel for the applicants relied on the following grounds,
namely that –
• in recommending the amendments Council was motivated by an apparent
perception that the Court was not cooperating with other organs of the
Community;
• the amendments were carried out in extraordinary haste;
• the substance of the amendments, namely restructuring the Court into two
divisions and increasing grounds for removal of judges, had no relationship
with the problem or mischief the Council purported to address, namely delays
of Community activities due to suspension of EALA functioning resulting from
the Court’s interim order;
• the way to avert the problem posed by the interim order in good faith,
would have been for the Partner State concerned to concede and cause a fresh
election of its representatives to EALA, without waiting for the final
judgment.
[81] Learned counsel for the respondents submitted that there was no
straight simple definition of the expression “good faith”, but that it
connotes fairness and reasonableness. He stressed that at international law,
states are assumed to act in good faith and consequently the courts are
reluctant to impute bad faith on the part of a state unless it is well
established by very clear evidence. In support of this proposition he quoted
a passage in the arbitral award in the Tacna-Arica Question, In the Matter
of Arbitration between the Republic of Chile and the Republic of Peru (UN
Reports of International Arbitral Awards, 2006, Vol. II 921-958).
[82] He argued that in the instant case, the impugned amendment process was
undertaken by three Partner States acting together in the Council and the
Summit, which makes it more difficult to impute bad faith on the part of
three States. He contended that even if it is assumed that one Partner State
was irked by, and over reacted to the interim order that questioned the
legitimacy of its choice of representatives to the EALA, the other two who
were not party to the Anyang’ Nyong’o case (supra) could not have been
similarly affected by the interim order. He opined that apart from that
order, there must have been other matters taken into consideration in
deciding to amend the Treaty. He further contended that the Partner States
were within their rights to consider the implications of the interim order
on the functioning of the Community, so long as they abided by the Court
decision as they did.
[83] Furthermore, learned counsel submitted that neither infringement of a
treaty provision per se nor the expeditious processing of the amendments in
the instant case should be construed as acting in bad faith or as evidence
thereof.
[84] The reference in the Anyang’ Nyong’o case (supra) arose from a highly
politicised dispute over the determination of Kenya’s nine new Members of
the EALA. It is apparent that although technically the reference raised a
legal issue of interpretation of the Treaty, the contesting parties viewed
it in light of the political dispute and any Court decision in it, whether
interim or final, was taken as a matter of victory or defeat in their
political dispute. What is more, the timing of the interim order, though
unavoidable, was unfortunate. It issued when the aura of that dispute was
still dominant. It was literally on the eve of inauguration of the 2nd EALA
when all concerned had converged on Arusha for that important event in the
calendar of the Community. The order had the immediate effect of suspending
the event and thereby the functioning of the EALA. That it met hostile
reception from some quarters in that environment was inevitable and not
surprising.
[85] We agree with learned counsel for the respondents that the Council was
entitled and indeed under duty to consider the implications of the interim
order on the activities and functioning of the Community as a whole. The
inexplicable matter, however, is that after identifying the problems
resulting from the suspension of EALA activities, the Council did not come
up with solutions to those problems. Instead, it recommended the
restructuring of the Court, as if the Court was the problem, which
recommendation had no bearing on the solution of the identified problems. It
is on this dichotomy that the applicant’s contention that the amendments
were not made in good faith, is anchored. However, though we accept that the
recommendation thus appears to be without rationale that alone cannot be
sufficient proof that the amendments were not made in good faith let alone
that they were made in bad faith. What constitutes bad faith?
[86] The holding by the Supreme Court of the Philippines in Benito Ang vs.
Judge R.G. Quilala and others: [A.M. No. MTJ-03-1476 February 4, 2003]
[http://www.supremecourt.gov.ph/jurisprudence/2003/feb2003/am_mtj_03_1476.htm]
[87] appears to be pertinent and to provide a comprehensive answer to this
not so simple a question. Judge Ynars-Santiago, with whom all the other
judges on the panel concurred, said –
“Bad faith does not simply connote bad judgment or negligence; it imputes a
dishonest purpose or some moral obliquity and conscious doing of a wrong; a
breach of a sworn duty through some motive or intent or ill-will; it
partakes of the nature of fraud. It contemplates a state of mind
affirmatively operating with furtive design or some motive of self-interest
or ill-will for ulterior purposes”
[88] With regard to the difficulty of imputing bad faith on a State, we
agree with the view expressed in the passage referred to us by learned
counsel for the respondents from the arbitral award in the Tacna-Arica
Question (supra). At p.930 of the report, the arbitrator says –
“While there should be no hesitation in finding such intent or bad faith, if
established, and in holding the party guilty thereof to the consequences of
its action, it is plain that such a purpose should not be lightly imputed.
Undoubtedly the required proof may be supplied by circumstantial evidence,
but the onus probandi of such a charge should not be lighter where the
honour of a Nation is involved than in a case where the reputation of an
individual is concerned. A finding of the existence of bad faith should be
supported not by disputable inferences but by clear and convincing evidence
which compels such a conclusion.” (Emphasis is added)
[89] In Barcelona Traction, Light and Power Company Limited (Belgium vs.
Spain) 2nd Phase (1970) I.C.J. Reports, Judge Tanaka (in a Separate Opinion)
at p.159 says –
“Although the Belgian Government insists on the existence of bad faith on
the part of the Spanish judiciary and puts forward some evidence concerning
the personal relationship of Mr. Juan March and his group with some
government personalities etc … we remain unconvinced of the existence of bad
faith on the part of the Spanish administrative and judicial authorities.
What the Belgian Government alleges for the purpose of evidencing bad faith
of the Spanish judges concerned does not go very much beyond surrounding
circumstances; it does not rely on objective facts constituting collusion,
corruption, flagrant abuse of judicial procedure by the Spanish judiciary.
….
It is not an easy matter to prove the existence of bad faith because it is
concerned with a matter belonging to the inner psychological process,
particularly in a case concerning a decision by a State organ. Bad faith
cannot be presumed.”
[90] We think the same must be said of the evidence, such as there was, in
the instant case. It fell short of proving conclusively either the
contention of the respondents that the impugned amendments were made in good
faith or that of the applicants that the impugned amendments were made in
bad faith. However, the former contention is helped by the presumption of
fact that a State does not act in bad faith.
[91] In order to rebut the presumption it was not sufficient to show that
the amendments were initiated as a result of the interim order which irked
officials of one Partner State, and that they were irrational because they
did not address the mischief caused by the interim order. It was necessary
to adduce cogent evidence leading to a compelling conclusion that all three
Partner States colluded to make the amendments from such ill-motives as to
intimidate or spite the Court or its judges. From the evidence as it stands,
the Court has no insight on what transpired during the deliberations that
led to each proposal for amendment. It is noteworthy that the only affidavit
evidence adduced was from deponents who did not even claim to have had
personal knowledge as participants in the deliberations that resulted into
the impugned amendments. Even if the issue had been properly within the
reference, therefore, the evidence would not have been sufficient to base a
holding on.
ISSUES NO.4 AND NO. 5
[92] The last two framed issues were also not part of the subject matter of
the reference for the Court’s determination under Article 30, and we allude
to them briefly only because we allowed argument on them.
[93] The fourth issue is “Whether the amendments as carried out can be
stopped”. In his submission under this issue, learned counsel for the
respondents, relying heavily on the decision of the High Court of Kenya in
the case of Anyang’ Nyong’o and 10 others vs. Attorney General and another,
High Court Case No. 49 of 2007, maintained that upon the amendments being
ratified by the Partner States in accordance with paragraph 6 of Article
150, they took effect and therefore became part of the Treaty. He argued
that as such, they were no longer amendments and could not be reversed.
According to learned counsel, the position would have been different if the
reference was made prior to the ratification when the amendments had not
taken effect.
[94] With due respect, we do not find merit in this argument. The scope of
Article 30 is not limited to anticipatory infringement of the Treaty. The
Article envisages this Court determining the legality of an Act that has
been enacted and come into force, a regulation that has been made, a
directive that has been given, a decision that has been taken and an action
that has been done and concluded. If upon reference of any of these the
Court finds that it is an infringement of the Treaty or otherwise unlawful
it has to so hold and, depending on the nature of the infringement or
unlawfulness, may grant the discretionary remedy of a declaratory judgment
annulling the such Act, regulation, directive, decision or action, as the
case may be.
[95] We reiterate that the last framed issue, namely “Whether the amendments
will strengthen the Community”, is also not part of the reference on the
legality of the impugned amendments. Indeed, as it turned out during
submissions by counsel, there was disagreement as to whose pleadings raised
it, with counsel on either side seeking to disown it because it was not
material to his case. Be that as it may, it was not seriously canvassed that
the impugned amendments were unlawful or infringed the Treaty because they
did not strengthen the Community or vice versa. Besides, with all due
respect to learned counsel, neither party was able to show definitively to
what measure and in what way the amendments strengthened or weakened the
Community. In essence their submissions were in the nature of speculation.
In the circumstances, we make no findings on this issue.
CONCLUSION
[96] In the result, we hold that the lack of people’s participation in the
impugned amendment process was inconsistent with the spirit and intendment
of the Treaty in general, and that in particular, it constituted
infringement of principles and provisions in Articles 5(3) (g), and 7(1)
(a). We also hold that the purpose for which Article 26 was amended
constituted infringement of Article 38(2) of the Treaty.
[97] Under paragraph 19 of the Reference, the applicants prayed for four
separate declarations. Our said holding covers the declarations sought under
sub-paragraphs (a) and (b). Under sub-paragraphs (c) and (d) they pray for –
“(c) DECLARATION that the entire process of amendment of the Treaty to date
is unlawful and of no legal effect;
(d) DECLARATION that the purported ratification processes for the said
Treaty amendments employed by the [Partner States] are illegal,
unconstitutional and of no legal effect”.
[98] Earlier in this judgment, we indicated that we would disregard as
abandoned, the averment in paragraph 17(c) of the reference alleging that
the ratifications of the amendments were unconstitutional, illegal and of no
legal effect since at the trial it was not canvassed. Accordingly we also
disregard the corresponding prayer (d) as abandoned.
[99] With regard to the prayer in (c), we have considered circumstances
which appear to militate against the grant of that declaration,
notwithstanding our holding. First, the text of the Treaty is not explicit
on the requirement of people’s involvement in its amendment. We have had to
consider several provisions of the Treaty in order to come to the conclusion
that the failure to involve the people in the amendment constituted an
infringement of the Treaty. In view of that we deduce that the infringement
was not a conscious one. Secondly, we are inclined to the view that after
this clarification of the law on the matter the infringement is not likely
to recur. Thirdly, while we are mindful of the gravity of infringement of
Article 38(2) of the Treaty, we take note of the fact that in the instant
case it had no significant effect, if any. Lastly in our view, not all the
resultant amendments are incompatible with the Treaty objectives, and those
that are, which we shall revert to presently, are capable of rectification.
[100] In the circumstances we think this is a proper case where we should
invoke the doctrine of prospective annulment. As we observed in Callist
Mwatela Case, (supra), the doctrine is good law. We should add that it is
particularly beneficial for our stage of developing integration and the
emerging Community jurisprudence. In the result we decline to invalidate the
amendments and declare that our holding on the requirement of involvement of
people in the Treaty amendment process shall have prospective application.
[101] Two other specific prayers remain. We consider that in view of our
findings the order prayed for in paragraph (e) is superfluous. Lastly, on
costs we order that the respondents shall jointly and severally bear the
applicants’ costs.
[102] Before taking leave of the reference, we are constrained to draw
attention of those responsible for initiating rectification of anomalies in
the Treaty, to two of the amendments whose implications may have been lost
in the haste.
[103] By the provisions under Articles 23, 33(2) and 34, the Treaty
established the principle of overall supremacy of the Court over the
interpretation and application of the Treaty, to ensure harmony and
certainty. The new
(a) proviso to Article 27; and
(b) paragraph (3) of Article 30,
have the effect of compromising that principle and/or of contradicting the
main provision. It should be appreciated that the question of what “the
Treaty reserves for an institution of a Partner State” is a provision of the
Treaty and a matter that ought to be determined harmoniously and with
certainty. If left as amended the provisions are likely to lead to
conflicting interpretations of the Treaty by the national courts of the
Partner States.
2. Article 26 of the Treaty established a mechanism for the removal of
judges for misconduct and inability to function as determined by an
independent tribunal appointed by the Summit, obviously applying uniform
standards. When read together with Article 43(2) it becomes apparent that
the objective of the Treaty is for the judges of the Court to be independent
of the Partner States they originate from. The introduction of automatic
removal and suspension on grounds raised or established in the home State,
and applicable to only those in judicial or public office, makes
possibilities of applying un-uniform standards to judges of the same court
endanger the integrity of the Court as a regional court. Under the original
mechanism such grounds could be submitted for consideration at the Community
level.
[104] We strongly recommend that the said amendments be revisited at the
earliest opportunity of reviewing the Treaty.
[105] Lastly, we wish to commend the applicants for the vigilance they have
demonstrated in trying to ensure the protection of the objectives of the
Treaty. We also wish to thank all the counsel for all the parties in this
reference for their industry in assisting us to come to a just decision.
DATED at Arusha this day of 2008
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