East African Court of Justice Arusha, 27 April 2015: The Appellate Division heard a matter refered by the High Court of the Republic of Uganda challenging the jurisdiction of the National Courts over interpretation and application of the Treaty for determination.
Mr. Elisha Bafirawala Senior State Attorney representing the Attorney General of Uganda submitted that, the High Court of Uganda referred the matter to East African Court of Justice to determine on the issue whether the national Courts have jurisdiction to interpret and apply the provisions of the Treaty for the Establishment of the East African Community under Articles 6, 7, 8 read together with 27 and 33.
Mr. Bafirawala furthers stated in his contention that the national Courts do not have sufficient legal execution of the Treaty especially under Article 33 read together with 27. He urged that Article 27 of the Treaty specifically provides initial jurisdiction to interpret and apply the provisions of the Treaty and that there is no similar provision conferring jurisdiction to interpret the Treaty on the National Courts.
Again Mr. Bafirawala emphasized that jurisdiction of any Court must be specific in clear words so that it is not gathered from other provisions. Article 33 (2) which states that “Decisions of the Court on the interpretation and application of this Treaty shall have precedence over decisions of national courts on a similar matter” that this Article means that National Courts also has some residual powers to interpret the Treaty and the Attorney General Uganda disagrees with that position.
He went ahead and stated that it is only the East African Court of Justice that has the jurisdiction to interpret the provisions of the Treaty and it is a reserve of the EACJ. That if the framers of the Treaty found it wise to give jurisdiction to National Courts they would have stated it clear similar in Article 27 of the Treaty.
Mr. Kosia Kasibayo also representing AG Uganda, urged that interpretation of Article 34 of the Treaty which provides jurisdiction to the National Courts to refer matters to EACJ for preliminary rulings, shows that its only the EACJ that has the jurisdiction to interpret the Treaty. He therefore asked Court to find that the National Courts do not have powers to interpret the Treaty.
Mr. Michel Ndayikengurikiye Principal Legal Officer representing the Secretary General of the East African Community told Court that the SG has a different view from the Republic of Uganda because Articles 6, 7 which provides fundamental principles of the Community and Article 8 provides general undertakings of the Partner States. He said that these are principles that guide the functioning of the Community and its integration as it was envisaged by the founding fathers and that those Articles create obligations on the Part of the Partner States to comply with those principles as well creates rights for individuals.
He further stated that the integration would never work especially the Common Market Protocol would never function if every aggrieved person would have to come to the East African Court of Justice to claim their rights. That the framers of the Treaty wanted the National Courts to participate together with the regional mechanism to ensure the Treaty is interpreted and complied with at National Level.
Mr. Michel in addition said that the Treaty for EAC has been domesticated under EAC Act 2002 section 3 which states that, “the Treaty as set out in the schedule of this Act shall have the force in the Law of Uganda” and therefore the Treaty has acquired the force of law in Uganda and is applicable to the National Courts. He again urged that Article 35 of the Treaty is away the regional court can interact with the national courts when they are faced with situations of interpretation of the Treaty and it deems it necessary and it can’t interpret and apply the Treaty its self.
He finally invited Court to find that National Courts have jurisdiction over interpretation of the Treaty and that both National Courts and Regional Court (EACJ) can award compensation for damages established by the beneficiary party.
The United Republic of Tanzania represented by the Senior State Attorney Mr. Kelley Mwitasi was in contention with the Republic of Uganda that the National Courts do not have jurisdiction to interpret and apply the Treaty.
The Republic of Kenya represented by the Ms. Muthom Kimani, Senior Deputy Solicitor General said that Kenyan National Courts have jurisdiction according to Article 33 (2) of the Treaty but has to be read with the Constitution depending on the subject of the dispute. She again submitted that without a basis on what the Republic of Uganda referred the matter to this Court the matter is not justifiable but asked Court to give its guidance.
The Court will deliver its judgment on notice.
Jurisdiction of National Courts
1. Except where jurisdiction is confer red on the Court by this Treaty, disputes to which the Community is a party shall not on that ground alone, be excluded from the jurisdiction of the national courts of the Partner States.
2. Decisions of the Court on the interpretation and application of this Treaty shall have precedence over decisions of national courts on a similar matter.
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East African Court of Justice