Subject(s): Judicial independence/impartiality International courts and tribunals, jurisdiction Rule of law

Transcription

1 Katabazi a 21 others v Secretary-General of the Ea African Community a Attorney General of Ugaa, Merits, Reference No 1 of 2007, (2007) AHRLR 119 (EAC 2007), IHRL 3112 (EAC 2007), 1 November 2007, Ea African Court of Juice [EACJ] Date: 01 November 2007 Content type: International court decisions Jurisdiction: Ea African Court of Juice [EACJ] Citation(s): Reference No 1 of 2007 (Official Case No) (2007) AHRLR 119 (EAC 2007) (Other Reference) IHRL 3112 (EAC 2007) (OUP reference) Product: Oxford Reports on International Law [ORIL] Module: International Human Rights Law [IHRL] Parties: James Katabazi, 21 others Secretary General of the Ea African Community (Ea African Community [EAC]), Attorney General of Ugaa (Ugaa [ug]) Judges/Arbitrators: Moijo Mataiya Ole Keiwua (President); Joseph N Mulenga (Vice President); Auguino SL Ramadhani; Mary Stella Arach-Amoko; Harold R Nsekela Procedural Stage: Merits Subject(s): Judicial iepeence/impartiality International courts a tribunals, jurisdiction Rule of law Core Issue(s): Whether the invasion of court premises by security agents of a ate to re-arre persons granted bail by the court violated the principle of the rule of law a therefore amounted to a breach of the ate s obligations uer the Treaty of the Ea African Community. Oxford Reports on International Human Rights Law is edited by: Professor Başak Çalı, Center for Global Public Law, Koç University, Ianbul Dr Magnus Killaer, University of Pretoria, Centre for Human Rights Professor Claudia Martin, American University, Washington College of Law Professor Lorna McGregor, University of Essex, Human Rights Centre

2 Facts F1 James Katabazi a others were charged with treason before the High Court in Ugaa; subsequently the High Court granted bail to 14 of them. Immediately after the bail hearing, Ugaan security agents swooped on the court premises, re-arreed those that had been granted bail a took them back to jail. The re-arreed persons along with all the accused were subsequently charged with other offences before a military General Court Martial upon the same facts that the earlier charges were based. F2 In reaction to the chain of events, the Ugaan Law Society, on behalf of the affected persons, brought an action before the Conitutional Court of Ugaa to challenge the conitutionality of the action of the security agents. Despite the fiing of the Conitutional Court that the action was unconitutional, Ugaa a its agents refused to release any of the persons in their cuody. Again this backgrou, this action was brought before the Ea African Court of Juice ( EACJ, Court ). F3 Before the EACJ, it was conteed that actions a omissions of the Ugaan security agents was a violation of the principle of the rule of law a therefore a breach of certain provisions of the Treaty of the Ea African Community (1999), entered into force 7 July 2000 ( EAC Treaty ). It was further conteed that the actions of the Ugaan security agents was an infringement of the fuamental principles of the Ea African Community ( EAC ). F4 Conceding to the facts before the EACJ, Ugaa argued that its security agents acted on intelligence that suggeed an intention on the part of the affected persons to engage in terrori acts again the ate. Thus, the action was not a violation of the rule of law. Ugaa further conteed that the EACJ was barred from entertaining the matter on the application of the doctrine of res judicata as the matter had previously been dealt with by the Conitutional Court of Ugaa. It was also Ugaa s contention that the EACJ lacked the jurisdiction to entertain the case as it touched on matters of human rights which the EACJ was not competent to determine on the basis of the EAC Treaty. Held H1 Three situations appeared to be essential for the doctrine of res judicata to apply. The matter mu be directly a subantially in issue in the two suits; the parties mu be the same or parties uer whom any of them claim litigating uer the same title; a the matter mu have been finally decided in the previous case. In the present case, the parties were not the same a could not be said to litigate uer the same title. The issues were also not the same. Therefore the doctrine of res judicata did not apply. (paragraph 38) H2 The Court did not have jurisdiction to deal with human rights issues. Jurisdiction with respect to human rights required a determination of the Council a a conclusion of a Protocol to that effect. Neither of these eps was taken. (paragraph 40) H3 While the Court did not assume jurisdiction to adjudicate on human rights disputes, it did not abdicate from exercising its jurisdiction of interpretation uer Article 27(1) of the EAC Treaty merely because the Reference included allegation of human rights violation. (paragraph 47) H4 The principle of the rule of law contained in Article 6(d) of the EAC Treaty encapsulated the concept that the overriding consideration in the theory of the rule of law is the idea that both rulers a the governed are equally subject to the same law of the la. (paragraph 55) H5 The line of defence offered on behalf of Ugaa, if eorsed by the Court would lead to an unacceptable a dangerous precedent which would uermine the rule of law. Much as the exclusive responsibility of the executive arm of government to ensure the security of Ugaa mu be respected a upheld, the role of the judiciary to provide a check on the exercise of the

3 responsibility in order to protect the rule of law could not be gainsaid. (paragraph 66) H6 The intervention by the armed security agents of Ugaa to prevent the execution of a lawful court order violated the principle of the rule of law a consequently contravened the EAC Treaty. Abiding by the decision of the court was the cornerone of the iepeence of the judiciary which was one of the principles of the observation of the rule of law. (paragraph 68) Date of Report: 06 November 2009 Reporter(s): Solomon T Ebobrah Analysis A1 The Ea African Community ( EAC ) was originally foued in 1967 but collapsed in In 1999, the EAC was revived by the three original fouing member ates. Although the revived EAC is expected to culminate ultimately in a political federation, the immediate focus of the EAC is economic in nature. Uer the EAC Treaty, member ates uertake to pursue integration, guided by the principles of good governance, democracy, rule of law, social juice a human rights. The Treaty which created the EACJ divides the Court s jurisdiction into two. The immediate jurisdiction of the Court in Article 27(1) of the EAC Treaty relates to the Court s competence to interpret a apply the EAC Treaty. The envisaged jurisdiction of the Court includes the competence to receive a determine human rights cases. The envisaged jurisdiction which is laid out in Article 27(2) of the EAC Treaty is subject to a decision of the EAC s Council a the conclusion of a protocol to that effect. Since the protocol in queion is yet to be concluded, the EACJ does not currently have competence over human rights cases. A2 Although the Secretary General of the EAC was a party to the action, the main issues were conteed between the applicants a the ate of Ugaa. While Ugaa took the view that the facts as presented before the Court did not amount to a violation of the rule of the law since its national security was at ake, the main thru of its defence hinged on the argument that the Court lacked jurisdiction to entertain the matter. The jurisdiction argument had two limbs. On the one ha, Ugaa argued that the doctrine of res judicata applied to ou the EACJ s jurisdiction since the matter had previously been heard by the Conitutional Court of Ugaa. On the other ha, Ugaa argued that by the operation of Article 27(2) of the EAC Treaty, the EACJ could not receive a determine a human rights case until the protocol empowering it to that effect was concluded. A3 The EACJ s position on the queion of res judicata is intereing to the extent that the Court felt obliged to demonrate the inapplicability of the doctrine by a resort to the national laws of member ates rather than the jurisprudence of other international courts a tribunals. If the assumption that the EACJ is an international court is correct, it is doubtful whether the doctrine of res judicata would apply as between the EACJ a national courts since it is the acts of ates, including the acts of national judicial bodies that form the subject matter of judicial a quasijudicial scrutiny at the international level. If international courts are to be prevented from hearing every matter that has previously come before national courts, it would mean that national courts a international courts operate on the same or a similar plane. It would equally mean that the practice of exhauion of local remedies would be reduant. It has to be noted, however, that the EACJ s assertion that the issues before it were different from those before the Conitutional Court of Ugaa on the grous that the case before the Conitutional Court was based on the Conitution, Ugaa while the case before the EACJ was based on the EAC Treaty suggeed an intention to show the difference between national a international judicial processes. The assertion shows some resemblance to the duali argument that international law a municipal law are two different syems that operate iepeently until the one is sought to be transposed into the field of the other. While the EACJ arrived at the same result of excluding the application of the doctrine in the context of the present case, it created room for future objections whenever a

4 case that has been previously heard by the highe courts of a member ate of the EAC is brought before it. A4 On the queion whether the EACJ could exercise competence in the face of the clear exclusion of the Court s competence in the field of human rights, the EACJ s position is obviously very progressive. By resorting to eablishing a link between its competence uer Article 27(1) of the EAC Treaty a the case at ha, the EACJ prevented itself from being deprived of jurisdiction. The queion that comes to mi is whether the Court was right to assume jurisdiction in the face of clear treaty provisions that denied it that competence in the present. However, on the basis of the doctrine of implied powers in the law of international initutions, it is arguable that the Court was right as the EAC Treaty did not expressly prohibit the exercise of such a jurisdiction but merely poponed conferment to a later date subject to certain events. Further, it would be noticed that the issues before the Court were framed as queions relating to the rule of law a compliance with treaty obligations relating to the rule of law rather than on issues of human rights. Accordingly, the EACJ wisely avoided a determination on the technical grous of human rights even though the Court admitted that human rights issues were involved. Thus, by avoiding the language of human rights while dealing with human rights issues, the EACJ eered itself out of the way of a potential collusion with the political authorities of the EAC. It is therefore not surprising that the EACJ avoided any resort to international human rights inruments in its judgment. A5 While it avoided international human rights inruments, the EACJ did refer to a cases decide by the African Commission on Human a Peoples Rights. The EACJ also referred to a case of its predecessor, the Ea African Court of Appeal, a to the jurisprudence of some national courts. This led the Court to easily conclude that the iepeence of the judiciary had been interfered with. Although the Court did not set out its own definition of the principle of the rule of law, it was able to hinge its judgment on the sum of the different definitions it gleaned from the cases it considered. By emphasizing that the principle of the rule of law obliged the executive apparatus of the ate to obey its own laws a to respect the judiciary, the EACJ iirectly reinforced the principles of separation of powers a equality of the arms of government. The decision also reinforces the view that the judiciary is the la guard of protection of human rights a the rule of law at the national level. A6 In the face of the overwhelming a overbearing powers exercised by the executive arms of government in mo African ates, the decision of the EACJ serves as a remier that the arms of government are equal. This is important as it is not unusual to fi that national judiciaries are helpless in the face of executive disregard for court judgments in this part of the world. Date of Analysis: 06 November 2009 Analysis by: Solomon T Ebobrah Inruments cited in the full text of this decision: International Treaty of the Ea African Community (1999), entered into force 7 July 2000, Articles 5, 6, 7, 8, 27, 29 Cases cited in the full text of this decision: African Commission on Human a Peoples Rights Conitutional Rights Project a Civil Liberties Organization v Nigeria, Comm no 143/95; 150/96 AHG/222 (XXXVI) Annex V

5 Ea African Court of Appeal Mukisa Biscuit Manufacturing Co Ltd v We E Diributors (1969) EA 696 Kenyan domeic courts Kenya v Gachoka a anor (1991) 1 EA 254 Tanzanian domeic courts Etiennes Hotel v National Housing Corporation (2005) 3 Civil Reference No 1 United Kingdom domeic courts Bennett v Horseferry Road Magirate Court a anor (1993) 2 All ER 474 Connelly v DPP (1964) 2 All ER 401 To access full citation information for this document, see the Oxford Law Citator record

6 Decision - full text Paragraph numbers have been added to this decision by OUP Judgment of the Court. 1 This is a Reference by sixteen persons again the Secretary General of the Ea African Community as the 1 Respoent a the Attorney General of Ugaa as the 2 Respoent. 2 The ory of the Claimants is that: During the la quarter of 2004 they were charged with treason a misprision of treason a consequently they were remaed in cuody. However, on 16 th November, 2006, the High Court granted bail to fourteen of them. Immediately thereafter the High Court was surroued by security personnel who interfered with the preparation of bail documents a the fourteen were re-arreed a taken back to jail. th 3 On 24 November, 2006, all the Claimants were taken before a military General Court Martial a were charged with offences of unlawful possession of firearms a 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 remaed in prison by the General Court Martial. 4 The Ugaa Law Society went to the Conitutional Court of Ugaa challenging the interference of the court process by the security personnel a also the conitutionality of coucting prosecutions simultaneously in civilian a military courts. The Conitutional Court ruled that the interference was unconitutional. 5 Despite that decision of the Conitutional Court the complainants were not released from detention a hence this Reference with the following complaint: The Claimants aver that the rule of law requires that public affairs are coucted in accordance with the law a decisions of the Court are respected, upheld a enforced by all agencies of the Government a citizens a that the actions of a Partner State of Ugaa, its agencies a the seco Respoent have in blatant violation of the Rule of Law a contrary to the Treaty continued with infringement of the Treaty to date. 6 The Claimants have sought the following orders: (a) That the act of surrouing the High Court by armed men to prevent enforcement of the Court s decision is an infringement of Articles 7(2), 8(1)(c) a 6 of the Treaty for the Eablishment of the Ea African Community (The Treaty). (b) That the surrouing of the High Court by armed men from the Armed Forces of Ugaa is in itself an infringement of the Fuamental Principles of the Community in particular regard to peaceful settlement of disputes. (c) The refusal by the Seco Respoent to respect a enforce the decision of the High Court a the Conitutional Court is infringement of Articles 7(2), 8(1)(c) a 6 of the Treaty. (d) The continual arraignment of the Applicants who are civilians before a military court is an infringement of Articles 6, 7, a 8 of the Treaty for Eablishment of the Ea African Community. (e) The inaction a the loud silence by the Fir Respoent is an infringement of Article 29 of the Treaty. (f) Cos for the Reference.

7 7 The 1 Respoent in his response at the outset sought the Court to dismiss the Reference on two grous: One, that there was no cause of action disclosed again him, a two, that the affidavits in support of the Reference were all incurably defective. In the alternative, the 1 Respoent argued that: The allegations which form the basis of the Application have at no time been brought to the knowledge of the 1 Respoent a the Claimants are, therefore, put to rict proof. 8 The 2 Respoent, on the other ha, virtually conceded the facts as pleaded by the Claimants. After admitting that the Claimants were charged with treason a misprision of treason, the 2 Respoent ated in his Response: th (e) That on 16 November, 2005, the security agencies of the Government of Ugaa received intelligence information that upon release on bail, the Claimants were to be rescued to escape the course of juice a to go to armed rebellion. (f) That the security agencies decided to deploy security at the High Court for purely security reasons a to ensure that the Claimants are re-arreed a taken before the General Court Martial to answer charges of terrorism a unlawful possession of firearms. th (g) That on 17 November, 2005, all the Claimants were charged in the General Court Martial with terrorism a unlawful possession of firearms which are service offences according to the Ugaa People s Defence Forces Act, No. 7 of Thus, in effect, the 2 Respoent is affirming that the acts did take place but contes that they did not breach the rule of law. 10 The Claimants were represented by Mr. Daniel Ogalo, Learned Counsel, while the 1 Respoent had the services of Mr. Colman Ngalo, Learned Advocate, a Mr. Wilbert Kaahwa, Learned Counsel to the Community. The 2 Respoent was represented for by Mr. Henry Oluka, Learned Senior State Attorney of Ugaa assied by Mr. George Kalemera a Ms. Caroline Bonabana, Learned State Attorneys of Ugaa. 11 When the matter came up for the Scheduling Conference uer Rule 52 of the Ea African Court of Juice Rules of Procedure (The Rules), Mr. Ngalo raised a preliminary objection that there is no cause of action eablished again the 1 Respoent. The pleadings of the Claimants do not disclose that at any age, 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. 12 Mr. Ogalo respoed by submitting that uer Article 71(1)(d) of the Treaty one of the functions of the Secretariat, of which the 1 Respoent is head, is: the uertaking either on its own initiative or otherwise, of such inveigations, collection of information, or verification of matters relating to any matter affecting the Community that appears to it to merit examination. 13 Mr. Ogalo conteed that it is not necessary that the 1 Respoent mu be told by any person because he can, on his own, initiate inveigations. 14 The Court dismissed the preliminary objection but we reserved our reasons for doing so a we now proceed to give them. At the time of hearing the preliminary objection the Court had not reached the age of a Scheduling Conference uer Rule 52. It is at that Conference that points of agreement a 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. 15 But apart from that the matter raised by Mr. Ngalo was not one which could be dealt with as

8 a preliminary objection because it was not on point of law but one involving facts. As LAW, J. A. of the Ea African Court of Appeal observed in Mukisa Biscuit Manufacturing Co. Ltd. v. We E Diributors Ltd. [1969] E. A. 696 at p. 700: So far as I am aware, preliminary objection consis of a point of law which has been pleaded, or which arises by clear implication out of pleadings, a 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 bou by the contract giving rise to the suit to refer the dispute to arbitration. 16 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.) 17 The Court of Appeal of Tanzania in Civil Reference No. 32 of 2005, Etiennes Hotel v National Housing Corporation dealt with a similar issue a, after citing Mukisa Biscuits with approval, held: Here facts have to be ascertained in all the remaining six grous of the so called preliminary objection a that is why the Respoent has filed two affidavits which have been objected to by the applicant. 18 We are of the decided view that grous 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 cos. 19 Whether or not the 1 Respoent had knowledge of what was happening to the complainants in Ugaa can never ever be a point of law but one of fact to be proved by evidence a, therefore, it could not be a matter for a preliminary objection a 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 queions from the Bench he abaoned 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 Seco Respoent, the re-arre of the Complainants granted bail by the High Court a their incarceration in prison conitute infringement of the Treaty for the Eablishment of the Ea African Community. 2. Whether the Fir Respoent can on his own initiative inveigate matters falling uer the ambit of the provisions of the Treaty. 22 As for the fir issue Mr. Ogalo submitted that the Court was called on to interpret Articles 6, 7, 8, 29 a 71 of the Treaty a implored the Court to do so by looking at the ordinary meaning of the words used in those provisions, the objectives of the Treaty a the purposes of those articles. 23 His main plank of argument was that the acts complained of violated one of the fuamental

9 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 a Another, [1999] 1 EA 254; Bennett v. Horseferry Road Magirates Court a Another [1993] 2 All ER 474; a a passage in Kanyeihamba s Commentaries on Law, Politics a Governance (Renaissance Media Ltd, 2006) p The learned advocate pointed out that the fir complaint is the act of surrouing the High Court of Ugaa by armed men so as to prevent the enforcement of the decision of the Court. The seco act was the re-arre a the incarceration of the Complainants. 25 Mr. Ogalo pointed out that the acts complained of conituted contempt of court a also interference with the iepeence of the Judiciary. He concluded that both contempt of court a the violation of the iepeence of the judiciary contravene the principle of the rule of law. 26 As for the seco issue Mr. Ogalo was very brief. He submitted that the 1 Respoent is empowered by Article 71 (1)(d), on his own initiative, to couct inveigation, collect information or verify facts relating to any matter affecting the Community that appears to him to merit examination. The a taken by Mr. Ogalo was that if the 1 Respoent properly exercised his powers uer the Treaty, he should have known the matters happening in Ugaa as a Partner State a take appropriate actions. 27 He, therefore, asked the Court to fi both issues in favour of the complainants. 28 In reply Mr. Ngalo pointed out that what concerned the 1 Respoent was the seco issue. The Learned Counsel submitted that the complainants are alleging that the 1 Respoent ought to have reacted to what the 2 Respoent was doing in Ugaa. However, he conteed, there is no evidence that the 1 Respoent was aware of those activities. He pointed out that Article 29 arts by providing Where the Secretary General considers that a Partner State has failed a he argued that for the Secretary General to consider he has to be aware but the Complainants have failed to eablish that awareness. 29 As for Article 71 Mr. Ngalo submitted that it provides for the functions of the Secretariat as an initution of the Community a not as to what happens in the Partner States. 30 For the 2 Respoent Mr. Oluka dealt with the surrouing of the High Court, the re-arre a the continued incarceration of the Complainants. The Learned Senior State Attorney pointed out that all the three matters were fully canvassed a decided upon by the Conitutional Court of Ugaa. 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 a those which were in the Petition before the Conitutional Court of Ugaa are subantially the same, the parties are different. In the Conitutional Petition No. 18 of 2005, the parties were The Ugaa Law Society a the Attorney General of Ugaa while in this Reference the parties are James Katabazi a 21 others, on the one ha, a the Secretary General of the Community a the Attorney General of Ugaa, on the other ha. Nevertheless, Mr. Oluka uck to his guns that the doctrine of res judicata applies to this Reference. 32 He also submitted that uer Article 27 (1) this Court does not have jurisdiction to deal with matters of human rights until jurisdiction is veed uer Article 27(2). He, therefore, asked the Court to dismiss the Reference with cos. 33 There are three issues which we think we ought to dispose of at the outset: Fir, whether or not Article 71 is relevant in this application. Seco, whether or not the doctrine of res judicata applies to this Reference. La, is the issue of the jurisdiction of this Court to deal with human rights.

10 34 It is the argument of Mr. Ogalo that Article 71 (1) (d) imposes on the 1 Respoent 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 ha, contes that Article 71 (1) (d) sets out the functions of the Secretariat as an initution of the Community a not as to what happens in the Partner States 35 Article 71 (1) (d) provides as follows: 1. The Secretariat shall be responsible for: (a) (b) (c) (d) the uertaking either on its own initiative or otherwise, of such inveigations, collection of information, or verification of matters relating to any matter affecting the Community that appears to it to merit examination; (Emphasis is supplied.) 36 Mr. Ngalo wanted to confine the functions of the Secretariat uer Article 71 (1) (d) to internal matters of the Secretariat as an organ, which he erroneously referred to as an initution, divorced from the duties imposed on the Secretary General uer Article 29. It is, therefore, our considered opinion that Article 71 (1) (d) applies to this Reference. 37 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, Ugaa a Tanzania as follows: No court shall try any suit or issue in which the matter directly a subantially in issue has been directly a subantially in issue in a former suit between the same parties, or between parties uer whom they or any of them claim, litigating uer the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, a has been heard a finally decided by such court. 38 Three situations appear to us to be essential for the doctrine to apply: One, the matter mu be directly a subantially in issue in the two suits. Two, parties mu be the same or parties uer whom any of them claim litigating uer the same title. Laly, the matter was finally decided in the previous suit. All the three situations mu be available for the doctrine of res judicata to operate. In the present case one thing is certain: The parties are not the same a cannot be said to litigate uer the same title. Mr. Oluka himself has properly conceded that. 39 Secoly, while in the Conitutional Court of Ugaa the issue was whether the acts complained of contravene the Conitution of Ugaa, in the inant Reference the issue is whether the acts complained of are a violation of the rule of law a, therefore, an infringement of the Treaty. Therefore, the doctrine does not apply in this Reference. 40 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 a application of this Treaty. 2. The Court shall have such other original, appellate, human rights a other jurisdiction as will be determined by the Council at a suitable subsequent date. To this e, the Partner States shall conclude a Protocol to operationalise the exteed

11 jurisdiction. 41 It very clear that jurisdiction with respect to human rights requires a determination of the Council a a conclusion of a Protocol to that effect. Both of those eps have not been taken. It follows, therefore, that this Court may not adjudicate on disputes concerning violation of human rights per se. 42 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 a programmes aimed at widening a deepening co-operation among the Partner States in political, economic, social a cultural fields, research a technology, defence, security a legal a judicial affairs, for their mutual benefit. (Emphasis supplied.) 43 Sub-Articles (2) a (3) give details of pursuing a ensuring the attainment of the objectives as enshrined in sub-article (1) a of particular concern here is the legal a judicial affairs objective. 44 Then Article 6 sets out the fuamental principles of the Community which governs the achievement of the objectives of the Community, of course as provided in Article 5 (1). Of particular intere here is paragraph (d) which talks of the rule of law a the promotion a the protection of human a peoples rights in accordance with the provisions of the African Charter on Human a Peoples Rights. 45 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) a seals that with the uertaking by the Partner States in no uncertain terms of Sub-Article (2): The Partner States uertake to abide by the principles of good governance, including adherence to the principles of democracy, the rule of law, social juice a the maintenance of universally accepted aards of human rights. (Emphasis supplied.) 46 Finally, uer Article 8 (1) (c) the Partner States uertake, among other things: Abain from any measures likely to jeopardise the achievement of those objectives or the implementation of the provisions of this Treaty. 47 While the Court will not assume jurisdiction to adjudicate on human rights disputes, it will not abdicate from exercising its jurisdiction of interpretation uer Article 27 (1) merely because the Reference includes allegation of human rights violation. 48 Now, we go back to the subance of this Reference. As we have already observed in this judgment, the 2 Respoent has conceded the facts which are the subject matter of this Reference a, so, they are not in dispute. He has only offered some explanation that the surrouing of the Court, the re-arre, a therefore, the non observance of the grant of bail, a the re-incarceration of the Complainants were all done in good faith to ensure that the Complainants do not jump bail a go to perpetuate insurgency. 49 Mr. Ogalo invited us to fi that explanation unjuified because it was not supported by evidence. We agree with him a we would go further a observe that the e does not juify the means. 50 The Complainants invite us to interpret Articles 6(d), 7(2) a 8(1)(c) of the Treaty so as to determine their contention that those acts, for which they hold the 2 Respoent responsible, contravened the doctrine of the rule of law which is enshrined in those articles.

12 51 The relevant provision of Article 6(d) provides as follows: The fuamental principles that shall govern the achievement of the objectives of the Community by the Partner States shall include: (a) (b) (c) (d) good governance including adherence to the principles of democracy, the rule of law, accountability, transparency, social juice, equal opportunities, geer equality, as well as the recognition, promotion a protection of human a peoples rights in accordance with the provisions of the African Charter on Human a Peoples Rights; (Emphasis supplied.) 52 The arting point is what does rule of law entail? 53 From Wikipedia, the Free Encyclopedia: The rule of law, in its mo basic form, is the principle that no one is above the law. The rule follows logically from the idea that truth, a therefore law, is based upon fuamental principles which can be discovered, but which cannot be created through an act of will. (Emphasis is supplied.) 54 The Free Encyclopedia goes further to amplify: Perhaps the mo 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 a enforced in accordance with eablished procedural eps that are referred to as due process. The principle is inteed to be a safeguard again arbitrary governance, whether by a totalitarian leader or by mob rule. Thus, the rule of law is hoile both to dictatorship a to anarchy. 55 Here at home in Ea Africa Juice George Kanyeihamba in Kanyeihamba s Commentaries on Law, Politics a Governance at page 14 reiterates that essence in the following words: The rule of law is not a rule in the sense that it bis anyone. It is merely a collection of ideas a principles propagated in the so-called free societies to guide lawmakers, adminirators, judges a law enforcement agencies. The overriding consideration in the theory of the rule of law is the idea that both the rulers a the governed are equally subject to the same law of the la. (Emphasis is supplied.) 56 It is palpably clear to us, a we have no flicker of doubt in our mis, that the principle of the rule of law contained in Article 6(d) of the Treaty encapsulates the import propoued above. But how have the courts dealt with it? In The Republic v. Gachoka a Another the Court of Appeal of Kenya reiterated the notion that rule of law entails the concept of division of power a its rict observance. In Bennett v. Horseferry Road Magirates Court a Another, the House of Lords took the position that the role of the courts is to maintain the rule of law a to take eps to do so. 57 In that appeal the Appellant, a New Zealaer, while living in Britain obtained a helicopter by false pretences a then fled the country. He was later fou in South Africa but as there was

13 no Extradition Treaty between Britain a South Africa, the police authorities of the two countries conspired to kidnap the Appellant a 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 circumances it mu be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action a to refuse to countenance behaviour that threatens either basic human rights or the rule of law. 58 His Lordship went on: It is to my mi unthinkable that in such circumances the court should declare itself to be powerless a a idly by. 59 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. 60 The appeal was allowed a the appellant was let scot-free. Have the facts complained of in this Reference breached the sacred principle of rule of law as expoued 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 Ugaa but some armed security agents of Ugaa surroued the High Court premises pre-empting the execution of the bail, re-arreed the Complainants, re-incarcerated them a re-charged them before a Court Martial. The Complainants were not released even after the Conitutional Court of Ugaa ordered so. 62 Mr. Ogalo left no one unturned to persuade us to fi that what the soldiers did breached the rule of law. He referred us to similar facts in the case of Conitutional Rights Project a 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 a 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 iepeence of the judiciary. Failing to recognise a grant of bail by the Court of Appeal militates again the iepeence of the judiciary. (Emphasis supplied). 63 The facts in that Communication are on all fours with the present Reference a we fi that the iepeence of the judiciary, a corner one 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 juify Decree No. 14 with the necessity for ate security. While the Commission is sympathetic to all genuine attempts to maintain public peace, it mu note that too often extreme measures to curtail rights simply create greater unre. 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 Ugaa through the Attorney General, the 2

14 Respoent, attempted to do, to juify the actions of the Ugaa Peoples Defence Forces: th (e) That on 16 November, 2005, the security Agencies of the Government of Ugaa received intelligence information that upon release on bail, the Claimants were to be rescued to escape the course of juice a to go to armed rebellion. (f) That the security agencies decided to deploy security at the High Court for purely security reasons a to ensure that the Claimants are re-arreed a taken before the General Court Martial to answer charges of terrorism a unlawful possession of firearms. 66 We on our part are alarmed by the line of defence offered on behalf of the Government of Ugaa which if eorsed by this Court would lead to an unacceptable a dangerous precedent, which would uermine the rule of law. 67 Much as the exclusive responsibility of the executive arm of government to ensure the security of the State mu be respected a 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 Conitutional Court of Ugaa referred to earlier in this judgment. In the context of the Ea 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 a application a compliance with this Treaty. 68 We, therefore, hold that the intervention by the armed security agents of Ugaa to prevent the execution of a lawful Court order violated the principle of the rule of law a consequently contravened the Treaty. Abiding by the court decision is the corner one of the iepeence of the judiciary which is one of the principles of the observation of the rule of law. 69 The seco issue is rather nebulous a we better reproduce it for a better comprehension: Whether the fir Respoent can on his own initiative, inveigate matters falling uer 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 uer this Treaty or has infringed a provision of this Treaty, the Secretary General shall submit his or her fiings to the Partner State concerned for that Partner State to submit its observations on the fiings. 71 The Secretary General is required to submit his or her fiings to the Partner State concerned. It is obvious to us that before the Secretary General is required to do so, she or he mu have done some inveigation. From the unambiguous words of that sub-article there is nothing prohibiting the Secretary General from coucting an inveigation on his/her own initiative. Therefore, the glaring answer to the seco issue is: Yes the Secretary General can on his own initiative inveigate such matters. 72 But the real issue here is not whether he can but whether the Secretary General, that is, the 1 Respoent, 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 mu have intelligence of some activity happening in a Partner State before he uertakes an inveigation. 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 1 Respoent had knowledge, however, was never produced by the Complainants in the course of the hearing. This,

15 therefore, is the appropriate juncture to determine whether or not knowledge is an essential prerequisite for an inveigation by the 1 Respoent. 74 We are of the decided opinion that without knowledge the Secretary General could not be expected to couct any inveigation a come up with a Report uer 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 Ugaa concerning the Complainants were so notorious that the 1 Respoent could not but be aware of them. But that was not the case for the Complainants. 76 In almo 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 uer Article 29 are so encompassing a are pertinent to the advancement of the spirit of the re-initution of the Community a 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 1 Respoent is taken to have been ignorant of these events, the moment this Application was filed a a copy was served on him, he then became aware, a if he was miful of the delicate responsibilities he has uer Article 29, he should have taken the necessary actions uer that Article. That is all that the Complainants expected of him: to regier with the Ugaa Government that what happened is deteable in the Ea African Community. 78 In the result we hold that the Reference succeeds in part a the Claimants are to have their cos as again the 2 Respoent. MOIJO MATAIYA OLE KEIWUA THE PRESIDENT JOSEPH N. MULENGA THE VICE-PRESIDENT AUGUSTINO S. L. RAMADHANI JUDGE MARY STELLA ARACH-AMOKO JUDGE HAROLD R. NSEKELA JUDGE

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